Discriminatory Antitrust in the Realm of Potential and Nascent Competition

One of the most important topics in antitrust is how to analyze potential and nascent acquisitions by the largest digital platforms. Notably, there have been calls to implement “discriminatory antitrust” policies where one set of rules applies to big tech while another set of rules applies to everyone else. However, less attention seems to be paid to the actual empirical evidence. To that end, this article reviews a recent FTC report on big tech acquisitions and finds little to raise alarms. Second, the article examines several recent acquisitions by Spotify, an important technology company that sits outside of the “big tech” classification. If Spotify’s recent series of acquisitions can reasonably be considered procompetitive, then why is the same not true (or even possible) for Apple and Amazon within the same product space? Finally, the article summarizes the findings of several recent studies that examined a series of big tech acquisitions. Taken as a whole, these studies indicate insufficient evidence to conclude a systematic concern that large digital technology companies are engaging in anticompetitive acquisitions of potential and nascent competitors.

By John M. Yun^[1]

I. INTRODUCTION

Currently, one of the most important topics in antitrust is how competition agencies and courts should consider acquisitions by “big tech” companies (that is, Amazon, Apple, Google, Facebook, and Microsoft). There are several competing v