More frequently than not these days, when two companies operating in the same market space agree to merge or to engage in a strategic partnership, the U.S. Department of Justice or the Federal Trade Commission, or even both agencies, are going to want a closer look. Take Oracle's acquisition of Sun Microsystems, and the Microsoft-Yahoo agreement in the search arena, for instance. The agencies want to make sure the merger, acquisition or partnership is not going to have an anti-competitive effect on the market such that consumers will be adversely affected.
The number of these inquiries has risen, and will continue to rise in the next few years, I'd imagine, because the Obama Administration has pledged to get serious about antitrust violations. That pledge has garnered mixed reviews, especially in the tech industry, as you can see in this post by our Rob Enderle. I don't have Rob's years of experience watching these things unfold, but I don't know that I would go to such extremes. Yes, the new administration appears to be taking a more hands-on approach in enforcing the law, but at least the agencies responsible are also evaluating whether the guidelines they use to do so are still up to par.
Last week, Compliance Week's Melissa Klein Aguilar reported that the DoJ and the FTC are considering whether the guidance they use in evaluating the anti-competitive effects of proposed horizontal mergers and acquisitions need updating. To that end, they are asking the public to respond to a 20-question survey on the matter. Aguilar writes:
The agencies encourage commenters to respond to the questions from two perspectives: whether revisions in the areas raised in the questions could yield guidelines that more accurately describe actual agency practice, and whether revisions could lead to a more accurate and/or more efficient merger review process.
The information collected from respondents will be used in a series of workshops on possible revisions.