Eating to Win: 斯科特Hemphill spotlights an antitrust problem for highly innovative industries: anticompetitive acquisitions of nascent competitors


How should antitrust law deal with powerful companies that acquire upstart competitors with strong but unrealized innovative potential—in order to neutralize or destroy these incipient rivals? In “新兴的竞争对手,”最近 宾夕法尼亚大学法律评论 文章,摩西H. 格罗斯曼法学教授 斯科特Hemphill and co-author Professor Tim Wu of Columbia 法律 School argue for an antitrust enforcement policy aimed at thwarting anticompetitive conduct that helps a monopolist maintain its market position, even if a nascent competitor’s ability to become a serious rival remains uncertain.


这个被热烈讨论的反垄断问题并不新鲜. 亨普希尔断言 美国v. 微软公司 (2001), which many antitrust law scholars and practitioners would call the most important antitrust case of the last several decades, established that enforcement is warranted even when the target of anticompetitive behavior doesn’t yet pose a certain competitive threat. A memo from Bill Gates laying out perceived threats to 微软’s operating system monopoly from the rise of Netscape’s internet browser gave regulators the evidence they needed to build an antitrust case, even though it was far from clear whether Netscape would have grown into a real competitor to Windows. But as Hemphill has seen from discussions at conferences and with defense-oriented practitioners, 不是每个人都同意 微软对未来反垄断的影响. 

Hemphill说 that he and Wu repeatedly heard the assertion that unless a would-be rival would very likely become a success, 当时反垄断法没有发挥作用. 这一观点, Hemphill说, “seemed wrong to us as a matter of basic economic logic and also at odds with our best antitrust tradition.“找不到一篇阐述反垄断执法理由的论文, 他们开始填补这一空白.

Hemphill believes that their paper’s argument is particularly relevant in fast-moving and highly innovative markets, 比如智能手机, DNA测序机, 或者操作系统——产品的边界所在的行业, 以及谁是竞争对手, 可能是不确定的或快速变化的.”

在他们论文中描述的最近一个著名案例中, the US Department of Justice filed a civil antitrust lawsuit in November 2020 to halt Visa’s acquisition of Plaid, 一家正在开发在线支付平台的金融科技公司. The Justice Department alleged that Visa had a monopoly in online debit payments and was seeking to acquire Plaid to eliminate a nascent competitive threat. Visa和Plaid放弃了5美元的计划.两个月后,30亿美元的合并.

Visa’s internal documents, discussed in a government filing, proved damning. 他们负责企业发展的副总裁写信说, “我不想成为他们微软的IBM,指的是Plaid的颠覆性潜力. 将Plaid的新功能描述为对Visa市场份额的威胁, the same executive drew an island volcano to illustrate Plaid’s present competitive capacity as merely “the tip showing above the water.”

微软 此案也揭露了类似的确凿证据, especially Bill Gates’s memo enumerating potential threats to 微软’s operating system monopoly. “That kind of internal documentation of how a sophisticated firm thinks about its competitive threats can be quite powerful for understanding what’s actually going on,亨普希尔说. “这种证据并不一定会出现在所有案件中, 但是当它可用的时候, 我们应该非常认真地对待它.” 

在没有明确的反竞争意图文件的情况下, 亨普希尔和吴写道, regulators can look more broadly at a company’s pattern of acquisitions of nascent rivals, 或者收购金额大大高估了被收购公司的价值. 

The co-authors also highlight the underutilized value of antitrust enforcement post-merger. That option gives regulators more time to develop a clearer picture of a firm’s intent and an acquisition’s anticompetitive consequences, in contrast to the predilection for ex ante enforcement that has characterized antitrust actions for the past several decades. An important recent example of ex post enforcement is the US Federal Trade Commission’s current lawsuit against 脸谱网 for what the FTC alleges is a yearslong pattern of anticompetitive conduct, 包括收购Instagram和WhatsApp. (脸谱网否认了政府的说法.)

Antitrust academics and practitioners currently debate what hurdle a plaintiff must overcome to establish the existence of an antitrust problem, 说Hemphill. 的显著特征之一 微软 is that it did not insist that DOJ show that Netscape certainly would or even probably would have been a successful rival to the operating system. It was enough that it was capable of making a substantial contribution to competition,他说. The article makes the counterintuitive point that larger monopolistic firms are more likely to target even the smallest nascent competitors: the bigger a company’s monopoly, 反竞争行为的绝对美元回报就越高.

Hemphill and Wu’s article acknowledges the importance of acquisitions as an exit for investors in small companies, 它还表达了对阻挠过多收购的厌恶. 而不是, their article singles out acquisition by the company or companies most threatened by a nascent competitor. 

他们的提议会让创业投资降温吗? 亨普希尔认为这种情况不太可能发生. “我们将限制一家公司的能力, 最多也就几家公司, 收购一家初创企业,他说. “如果它是一家有前途的初创企业,可能会有很多追求者.” 

The downside of insufficient enforcement involving the anticompetitive acquisition of nascent competitors, Hemphill adds—including higher prices and diminished innovation—is of far greater concern: “We shouldn’t, 作为执法人员, 当我们观察到这种行为时,要退缩或放松. 是的, 这与煤炭生产商收购其主要竞争对手不同, 但危害可能相当严重, 当它出现时,它不应该被忽视.”