Antitrust fears aren't just for 25-year-old software giants anymore; they may well come into play for start-up business-to-business exchanges as well.
While companies seem to be able to put out press releases announcing new B2B exchanges with
ease, fending off antitrust scrutiny might be more difficult.
Antitrust lawyers and experts say the anticompetitive issues raised by B2B exchanges, which allow companies to buy and sell supplies and products over the Internet, are becoming painfully apparent and too significant to ignore. That's why people who run in antitrust circles are increasingly turning their attention to B2B e-commerce.
"These B2B deals are the new frontier of antitrust law. After Microsoft, they're getting the most attention from the antitrust bar," says Hillard Sterling, a partner at Chicago law firm
Gordon & Glickson
who specializes in antitrust law. "Any time competitors collaborate, it raises the eyebrows of antitrust regulators -- and hungry plaintiff's lawyers."
It's certainly gotten the attention of the
Federal Trade Commission
. The FTC is conducting a review of the auto exchange proposed by Detroit's
Big Three automakers, and has scheduled a workshop in June to examine "competition issues" in B2B exchanges.
Meanwhile, suppliers such as
Delphi Automotive Systems
are reportedly taking a wait-and-see approach to the auto exchange while the FTC does its due diligence.
None of that, of course, means that Uncle Sam is looking to ground B2B exchanges before they take off. That's good news for the technology companies behind exchanges, namely
But it does suggest that while FTC officials readily agree B2B exchanges can benefit both companies and consumers, they also recognize the potential for exchanges to foster anticompetitive practices. And with industries such as aerospace, chemicals, energy and computer manufacturing forming exchanges, the FTC certainly has more than a purely academic interest in understanding how these online markets will conduct business.
"I'd read that workshop as a signal that at this point,
the FTC hasn't reached any conclusion that these exchangers are problematic," says William Baer, a private attorney who until last fall headed up the FTC's Bureau of Competition. "But they do want to see how these things are structured and identify any likely antitrust issues that may arise to make sure that their enforcement policies are tuned in to those issues."
As a policy, the FTC doesn't comment publicly on ongoing investigations or talk about cases under review, and officials declined to talk about specific exchanges for this article. However, an individual familiar with the agency's view on the exchanges identified three areas of concern:
Whether a given exchange might become too big for others to compete against it;
Whether competitors in, say, the auto industry, could use the exchanges to collude and set prices; and
Whether an exchange might enable dominant companies to undercut the competition on prices, and effectively ban it from the market
"The trouble with these exchanges, and the reason they're getting so much attention, is that you create problems whenever you put competitors in the same space," says Sterling. "Markets are supposed to work with competitors fighting tooth and nail, not joining together to enjoy beneficial cost savings. These deals immediately implicate the dark cloud of antitrust that's hanging over them."
Of course, the businesses that are setting up these exchanges see things in a slightly different light. Take
, one of the lead companies setting up a mega-exchange for the computer industry. A Compaq spokesman says the exchange will lead to savings for its participants, which ultimately will be passed along to consumers. He says an assumption of wrongdoing by participating companies before the exchange is in existence is unwarranted.
"To automatically assume that companies are going to go out and engage in illegal activities to gain a competitive advantage is absolutely ridiculous," says Compaq's Arch Currid. "Compaq continues to, and will always, perform its due diligence to ensure that we're conforming with all FTC regulations."
And the companies setting up these exchanges aren't babes in the woods. Industry officials have stressed repeatedly that their own antitrust lawyers have been intimately involved in drafting the blueprints for the exchanges. The point, they say, is to make sure everything is done aboveboard from the start, and thus not draw any intervention from regulators in the first place.
After all, enforcement of the rules can be carried out only if they are broken.
"Particularly with these very big exchanges, say the ones set up by
, if they were to engage in exclusionary practices, they know they're asking for trouble," says Ulric Weil, a high-technology strategist for investment bank
Friedman, Billings, Ramsey
, which has no underwriting ties to GM or DuPont. "At least, they'd be asking for an investigation, and who knows what happens then. Most people don't like to invite such inquiries if they can avoid it."
Indeed. Yet while the flood of press releases on B2B exchanges continues to swell, antitrust issues are gaining significance as well. Even Compaq's Currid concedes that the antitrust issues deserve some scrutiny.
"When you put something of this scale together with this many companies involved, you have to look at all the legal issues," he says. "Antitrust is certainly one of them.
As more exchanges get up and running, look for antitrust to be one of the dominant legal issues they face. And it will be an issue to get a thorough going-over at the FTC's "workshop" in June.