Antitrust Enforcement in Tech Mergers

Join the GW Law Competition Law Center and Crowell & Moring for the inaugural Antitrust and Tech Conference, which will focus on how antitrust enforcement involving mergers of technology companies will and should be carried out.

As federal, state, and international antitrust scrutiny of the tech industry escalates, the question is no longer whether antitrust enforcement should intensify, but how. Two panels and a keynote interview with US and international enforcers, private practitioners, economists, and members of academia will discuss issues related to acquisitions of nascent rivals, including “killer” and non-horizontal acquisitions, and potential competition theories of harm, as well as how to analyze tech mergers in light of big data issues, which may raise barrier-to-entry and other concerns.

Agenda

8 - 8:30 am: Registration and Continental Breakfast

8:30 - 9 am: Welcome and Opening Remarks

• William E. Kovacic, Global Competition Professor of Law and Policy and Director, Competition Law Center, GW Law; Former Chair, Federal Trade Commission
• Andrew Gavil, Senior Of Counsel, Crowell & Moring LLP; Professor of Law, Howard University School of Law

9 - 10:15 am: Acquisitions Involving Nascent, Potential, and Innovation Competition

• Jonathan Baker, Research Professor of Law, American University Washington College of Law
• Patricia Galvan, Assistant Director, Technology Enforcement Division, Federal Trade Commission
• Alexis Gilman, Partner, Crowell & Moring LLP
• Bill Kovacic, Global Competition Professor of Law and Policy and Director, Competition Law Center, GW Law; Former Chair, Federal Trade Commission
• Diana Moss, President, American Antitrust Institute

The rapid growth of some of the largest tech firms has been fueled in part by acquisitions that did not readily fall into traditional categories of “horizontal” or “vertical” mergers. Few such acquisitions have been challenged, which has sparked a lively debate about whether antitrust enforcement has relied too heavily on those traditional categories and ignored non-traditional potential competitive effects from such transactions. This panel will examine how courts and agencies might in the future analyze such “potentiality.” Potential competitive effects can take many forms, including nascent, potential, and innovation competition, and can be important for evaluating likely market entry or repositioning. This panel will explore how antitrust enforcers could go about investigating and challenging a wider range of acquisitions involving nascent, potential, and innovation competition. How should agencies go about defining markets, determining whether the smaller upstart might have brought to bear added competition or otherwise impacted competitive threats to the incumbent, evaluating entry, and ultimately assessing pro- as well as anti-competitive effects?  How reliable must those predictions be? What kinds of inferences can be justified? What evidence will be relevant?  What is the relevant timeline for assessing competitive effects in these cases? How should price and non-price effects be assessed? And, does current antitrust law enable enforcers to successfully challenge these deals, or must the law and burdens of proof change in some way?

10:15 - 10:30 am: Break

10:30 - 11:45 am: “Information Effects” of “Big Data” Transactions

• Nicholas Banasevic, Head of Unit, DG Comp
• Daniel Francis, Associate Director for Digital Markets, Federal Trade Commission
• Andrew Gavil, Senior Of Counsel, Crowell & Moring LLP; Professor of Law, Howard University School of Law
• Randy Long, Director, Competition & Consumer Protection Policy, Microsoft Corporation
• Jeane Thomas, Partner, Crowell & Moring LLP

This panel will focus on one of the most controversial aspects of the digital age: the aggregation of ever-larger stores of data. The information has long been a coveted asset, but advances in technology have exponentially increased the ability of firms to collect and more rapidly analyze data. That, in turn, has amplified the value of information and facilitated the emergence of business models designed to collect and monetize information, which can drive transactions to acquire complementary data sources. While these advances have allowed merging firms to provide better products, services, and more relevant information and advertisements to consumers, some critics have expressed concern that the agencies might be overlooking anticompetitive effects in mergers of firms that do not appear to be competitors in their core business operations. How should enforcers distinguish between combinations involving data sets that are likely to lead to anticompetitive effects and those that are procompetitive? And in considering how best to analyze data transactions, how should agencies evaluate network effects and assess two- or multi-sided platforms?  Finally, what are appropriate remedies to resolve concerns in mergers combining large data sets, particularly where personal information is at issue?

11:45 am - 12:30 pm: Dialogue with Enforcers

• Juan Arteaga, Partner, Crowell & Moring LLP
• Nicholas Banasevic, Head of Unit, DG Comp
• Bill Kovacic, Global Competition Professor of Law and Policy and Director, Competition Law Center, GW Law; Former Chair, Federal Trade Commission
• Gail Levine, Deputy Director, Federal Trade Commission
• Kim van Winkle, Chief, Antitrust Division, Texas Attorney General’s Office

The conference will conclude with a conversation among Professor Kovacic, Juan Arteaga of Crowell & Moring LLP, and a panel of US, state, and EU enforcement officials regarding tech mergers and antitrust enforcement in digital markets more generally.   

12:30 - 1:30 pm: Conclusion and Lunch