Antitrust battle against Big Tech In the words of Peter Whelan - Núm. 2, Febrero 2021 - Industria Legal - Libros y Revistas - VLEX 858011047

Antitrust battle against Big Tech In the words of Peter Whelan

Industria Legal
The US antitrust authority (the Federal Trade
Commission or FTC) sued Facebook some
days ago, alleging that it has illegally
maintained its monopoly on social media, by
means of its 2012 acquisition of Instagram and
2014 acquisition of Whatsapp. This is
notwithstanding the fact that the FTC itself had
analyzed and approved such acquisitions in
the past. In Chile and many other Latin
American jurisdictions we are transitioning in
the last years towards a mandatory merger
control system. For the implementation of this
new regulation in our countries, what lessons
can we obtain from this case against
In the words of
Antitrust battle
against Big Tech
It is indeed the case that the Federal Trade
Commission – and, of course, over forty US State
Attorneys General – have very recently initiated
proceedings against Facebook concerning its
already completed acquisitions of both Instagram
and WhatsApp. Both of those acquisitions were
considered by the regulator before they were, in
effect, allowed to be completed. The cases
against Facebook therefore clearly bring to the
fore the challenging issue about whether mergers
should be reviewed ex post (either on the basis of
an ex post merger control law or the general
antitrust law provisions), even though they have
already been evaluated ex ante and deemed at
that particular time to be acceptable in
competition terms. Taking a view on this issue is
of obvious importance in jurisdictions that have
mandatory merger notification regimes, given that
ex ante merger evaluations will inevitably need to
be undertaken under those regimes.
No doubt, authorities can get things wrong –
particularly when attempting to look forward to future
market dynamics, as opposed to evaluating what has
already occurred. Ex ante merger review is a
notoriously difficult endeavour and to expect the
authorities – no matter how experienced - always to
make the correct call on a notified merger would be to
ask for too much. Allowing authorities to have another
go at the evaluation – this time following further
development of the relevant market and following
some firm demonstration of how the merged entity
actually operates in that market – thus has some
intuitive appeal in terms of ensuring more accuracy in
the competitive assessment. To rule out in principle
the possibility of an ex post evaluation closes off this
possibility of injecting more accuracy into the merger
review regime, which is an outcome that has the
potential to impact negatively upon consumer welfare.
It also reduces the scope for the authority to learn
important lessons about their substantive evaluations
that can be fed back into the ex ante review process
generally. Ex post merger control brings with it some
obvious practical challenges, particularly if in that
context the authority ultimately comes to the
conclusion that the merger was in fact an
anticompetitive one. What should happen next is not
an easy call to make. The analogy with ‘unscrambling
eggs’ is often made here, although no doubt one
needs to avoid exaggerating the extent of problem: it
all depends, of course, on the specifics of the
individual case. Whilst divestitures can be complicated
and expensive, and whilst the call on whether a
proposed divestiture should occur in a given instance
is, no doubt, a complicated decision, involving the
consideration of a multitude of factors, the option of
divestiture should be available in principle if the full
potential of an ex post merger review process is to
Antitrust lawyers Santiago Ried
(Dentons, Chile); Andrés Yáñez
(Esguerra, Colombia); and David
Kuroiwa (Payet, Rey, Cauvi, Pérez,
Perú) interviewed Professor Peter
Whelan about the new antitrust
actions initiated by the Federal Trade
Commission and several US states
against Facebook.

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