FTC Commissioner nominee Lina M. Khan testifies during a Senate Committee on Commerce, Science, and Transportation confirmation hearing on Capitol Hill in Washington, DC, April 21, 2021.
Getty Images At Wednesday’s open session, the Federal Trade Commission indicated that it will be more closely scrutinizing noncompetes as well as loopholes in reporting on mergers.| AFP | Getty Images
The Federal Trade Commission signaled greater scrutiny of merger reporting requirement loopholes and noncompetes at its open meeting Wednesday.
Companies are only required to report transactions exceeding $92 million in value under the Hart-Scott-Rodino Act (though that threshold has been lower in the past), so the FTC sought to understand patterns in how Big Tech companies acquire smaller businesses.
This was an investigation by enforcement only and the study was conducted under the direction of FTC’s Office of Policy Planning.
Here are some key findings from the aggregate report presented by FTC staff:
- The five tech firms made 616 nonreportable transactions of more than $1 million between the beginning of 2010 and end of 2019.
- The companies also disclosed events such as acquisitions of patents and transactions less than $1 million. FTC discovered that majority acquisitions and asset acquisitions were the most commonly unreported transactions in this group.
- According to the FTC, 94 transactions exceeded the HSR threshold when they were complete. This could be due to various reporting exemptions.
- If deferred and contingent compensation had been included in the purchase price, nine additional transactions would have exceeded HSR threshold. FTC determined that over 79% (of the total transactions) included these agreements for target founders and key employees.
- The target was liable or owed debt in 36% of the transactions.
- At least 39% (where the target firm was involved) of the transactions were conducted with a firm less than five year old.
- Over 75% of transactions contained non-compete clauses that protected founders and key employees.
Lina Khan, FTC Chair, outlined three key takeaways for the public after the presentation.
First, the FTC needs to identify loopholes in HSR reporting requirements which allow transactions to “fly below the radar”. The FTC needs to learn from other international counterparts, as about a third (33%) of transactions examined involved foreign targets. Khan stated that thirdly, the FTC needs to further examine the use of noncompete agreements in merging transactions.
Khan stated that it would be worthwhile to study how digital market firms might use acquisitions to secure key assets and talent.
Khan also said she hopes that the report will prove useful for lawmakers, as well as those who are considering changes to antitrust laws.
Khan explained that although the law currently uses the deal size as an indicator of potential competition significance, digital markets are able to show the importance of smaller transactions and warrant extra caution.
Many commissioners demanded similar research in the future to be done for other industries.
The public report does not reveal the pattern of the findings. However, Democratic Commissioner Rebecca Kelly Slaughter believes the real value lies in the pattern revealed in the report.
She said that serial acquisitions are like a Pac-Man strategy. Each individual merger may seem small in impact when viewed separately. However, the combined effect of hundreds of small acquisitions could lead to a dominant entity.