Companies like Apple, Amazon and Google do not always disclose every acquisition they make, especially when the companies in question are little fish in the big tech pond. But in aggregate, all that M&A could pose bigger questions about how they are using their financial power and market influence in anticompetitive ways.
That idea is the subject of the latest announcement from the U.S. Federal Trade Commission, which today issued Special Orders to five big tech firms — Alphabet (including Google), Amazon, Apple, Facebook and Microsoft — “requiring them to provide information about prior acquisitions not reported to the antitrust agencies under the Hart-Scott-Rodino (HSR) Act.”
The five companies will need to come clean and report on every deal they have made — whether or not the media has spilled the beans on the acquisition or not — including the terms (that is, price and other financial details), scope, structure and purpose of each transaction made between January 1, 2010 and December 31, 2019.
“The orders will help the FTC deepen its understanding of large technology firms’ acquisition activity, including how these firms report their transactions to the federal antitrust agencies, and whether large tech companies are making potentially anticompetitive acquisitions of nascent or potential competitors that fall below HSR filing thresholds and therefore do not need to be reported to the antitrust agencies,” the FTC said in a notice on the investigation.
The FTC has not ruled out whether it would retroactively do anything around any of those past acquisitions.
“It’s conceivable we could go back,” and level enforcement actions “to deal with transactions,” said FTC Chairman Joe Simons in a press call today.
But it also seems to be educating themselves. In a further statement, the FTC describes how it wants to use the information to better inform its policy, it said, and decide how to reform its policies to fit market practice in a better way.
“The FTC has a statutory right under the HSR Act to review acquisitions and mergers over a certain size before they are consummated, and the study will help the Commission consider whether additional transactions should be subject to premerger notification requirements,” it noted. “The orders will also contribute broadly to the FTC’s understanding of technology markets, and thereby support the FTC’s program of vigorous and effective enforcement to promote competition and protect consumers in digital markets.”
“Digital technology companies are a big part of the economy and our daily lives,” Simons said in a statement. “This initiative will enable the Commission to take a closer look at acquisitions in this important sector, and also to evaluate whether the federal agencies are getting adequate notice of transactions that might harm competition. This will help us continue to keep tech markets open and competitive, for the benefit of consumers.”
Essentially what it will mean is that these smaller deals will need to be reported in the same way that these big companies report larger deals. Up to now, companies do not have to report certain details about deals — or, indeed, the deals themselves — unless they have a material impact on the company, as specified by the Hart-Scott-Rodino Act. (These have incidentally also been modified in the last month to set a slightly higher notification threshold.)
Some, like Apple, have even developed a special stock statement that it will issue in cases where it does come clean on a specific deal when presented with enough evidence of it having happened. “Apple buys smaller technology companies from time to time, and we generally do not discuss our purpose or plans,” it likes to note.
The HSR Act, as it’s known, does leave a lot of wiggle room, where acquisitions, when they are reported, can be noted in the vaguest of terms without a lot of detail as to specific purposes, so it’s not clear what kind of information we will get out of this. Nor is it known just how much of the FTC’s new orders will trickle out as public information.
But the FTC notes that what it will be requiring includes the same kinds of details that are typically requested around HSR, including “information and documents on their corporate acquisition strategies, voting and board appointment agreements, agreements to hire key personnel from other companies, and post-employment covenants not to compete. Last, the orders ask for information related to post-acquisition product development and pricing, including whether and how acquired assets were integrated and how acquired data has been treated.”
Updated with details from the press call.