Major agency policy changes in regulating competition are expected to lead to increased scrutiny of M&A activity. In our practice, we are actively consulting with clients on the potential effects of the Order that may benefit entrepreneurs and middle market M&A players.
SUMMARY OF EXECUTIVE ORDER
On July 9, 2021, President Biden issued an Executive Order on “Promoting Competition in the American Economy” (the “Order”). The stated policy of the administration is to enforce antitrust laws to address the impacts of “excessive” concentration and abuse of market power, particularly as those issues relate to labor markets, Internet platform industries, internet service, banking and financial services, health care markets, agricultural markets and U.S. markets directly affected by foreign cartel activity. It is rooted in the administration’s belief that excessive market concentration threatens basic economic liberties, democratic accountability, the welfare of workers, small businesses and startups.
The Order takes a whole-of-government approach by directing more than a dozen federal agencies to act on 72 initiatives to crack down on anti-competitive practices. The Order reiterates the power of the agencies to challenge prior deals that have closed, especially in areas of “excessive market concentration”. It also directs the antitrust agencies to consider revising the current horizontal and vertical merger guidelines and limit or ban non-compete agreements. FTC Chair Lina Kahn has stated that current guidelines “deserve a hard look to determine whether they are overly permissive” and will review of merger guidelines “with the goal of updating them to reflect a rigorous analytical approach consistent with applicable law”.
The Order establishes a new White House Competition Council led by the Assistant to the President for Economic Policy and Director of the National Economic Council to coordinate anticompetitive behavior and the implementation of the directives. The Council will comprise representatives from the key agencies and will invite the participation of the FTC and other independent agencies.
Technology Industry and Data Accumulation
The policy will intensify congressional and agency scrutiny of large technology platform business practices and transactions by “dominant internet platforms.” The Order focuses on the rise of “a small number of dominant Internet platforms” and directs the FTC to promulgate rules to govern surveillance and the accumulation of data. The FTC is directed to establish rules specifically to address competition concerns from Big Tech companies, Facebook, Apple, Alphabet’s Google and Amazon, and limit “killer acquisitions” where large internet platforms acquire potential competitors.
The rules will address methods by which large technology platforms are seen as competing unfairly with smaller businesses that interact with the platforms. Unfair practices may include gaining non-public information about new products that a small business is selling, using knowledge of sales data to decide whether to launch a similar or “copycat” product and displaying their own products more prominently on their platform. The Chair of FCC is encouraged restore Obama-era net neutrality rules and initiate rulemaking requiring. Internet services companies should be prepared to face greater scrutiny of serial mergers, the aggregation of data, the surveillance of users and the presence of network effects.
Entrepreneurs and Middle Market Players
The Order states that industry consolidation over several decades is denying Americans the benefits of an open and competitive marketplace as a small number of dominant Internet platforms use their power to exclude market entrants, extract monopoly profits and gather intimate personal information that they can exploit for their own benefit. The White House says the rate of new business formation has fallen by almost 50% since the 1970s as large businesses make it harder for Americans with good ideas to break into markets.
In our practice in recent years, we see Big Tech substantially outsourcing R&D to more nimble startups. Big Tech gets access to R&D developed off the balance sheet. Entrepreneurs get early exits before they meet all the challenges of wide-scale commercialization. While this has benefitted both sides, those transactions can stifle competition as innovative technologies are snapped up by Big Tech before they have a chance to reach the market.
In response to the government’s efforts to roll back industry consolidation, Big Tech may bring more R&D in-house. M&A activity in heavily consolidated sectors also may slow as the Order specifically mentions the acquisition of nascent competitors in its directive to enforce the antitrust laws and meet the challenges posed by new industries and technologies. As entrepreneurs may stay independent for longer, we expect see more companies raising capital through either debt financing or equity financing. Banks and other credit providers will be encouraged to improve access to debt capital for smaller businesses as part of the effort to open the economy. We also anticipate seeing more strategic alliances and M&A activity in the Middle Market as Big Tech brings R&D in-house and curtails acquisitions.
Entrepreneurs will have more choices among suppliers and major buyers and more time and space to experiment, innovate and pursue ideas and grow their businesses.
The Order introduces a period of possibly far-reaching change in way competition is addressed by federal agencies with jurisdiction over a significant portion of the US economy and business landscape, including for entrepreneurs and smaller businesses. Anyone who anticipate being affected by forthcoming rulemaking or policy revision may wish to submit comments during the various public comment processes.
ABOUT THE AUTHOR
Mark Haddad is a founding partner of Flatiron Law Group. He has been active on corporate and financial matters for clients throughout his career and concentrates in the areas of M&A and private equity, credit transactions and acquisition finance, emerging companies and technology commercialization.
FLATIRON LAW GROUP
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This publication is provided by Flatiron as a service to clients and colleagues. The information contained herein should not be construed as legal advice. Questions regarding the matters discussed may be directed to any of our lawyers.