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B2B Exchanges and Antitrust Risks

By Hillard Sterling

June 15, 2001 — CIO —

COMPANIES ARE INCREASINGLY FORMING and joining B2B exchanges to do business over the Internet. B2B marketplaces take many different forms, just as collaborations and joint ventures do offline, but they almost always involve some degree of information exchange or coordination between competitors. Whatever their form, they can offer your company huge opportunities to cut costs, realize efficiencies and enhance competitiveness. But with opportunity comes risk, and one of the biggest risks is the looming specter of antitrust challenges.

These antitrust risks are not merely speculative. Government agencies are actively involved in watching B2B marketplaces and assessing their competitive effects. The Federal Trade Commission recently announced that it is continuing to monitor one of the most highly visible B2B collaborations?the Covisint venture involving the Big Three automakers and others. The government is also watching various other B2B exchanges and an uncertain number are facing possible private antitrust challenges.

However, B2B participants are in a strong position to address these concerns. Even aggressive government regulators must concede that B2B marketplaces often enable their participants to cut costs and streamline their operations, which arguably is a good development for competition, especially if these cost savings translate into lower prices for consumers.

Let’s take a bunch of widget manufacturers, for example. Assume that these suppliers have developed an Internet market to sell their widgets through online catalogs. Here’s what they should ask regarding potential antitrust problems.

1. How red are the antitrust flags?

Your exchange is more likely to attract antitrust attention if it has significant "market power"?the ability to restrict output, exclude competitors or raise prices. You should feel relatively comfortable if the collective market share of your B2B participants is less than 20 percent in each affected market, a safety zone defined by the government’s competitor collaboration guidelines. But the more you move above this zone, the greater the risk that the government or your competitors will place your exchange under the antitrust microscope.

Even assuming the absence of large market shares and clear market power, your B2B collaboration will face close scrutiny if its participants engage in conduct that is unlawful under antitrust principles. Woe to those participants who are working together to affect prices or allocate markets. Our hypothetical widget manufacturers, for example, increase their antitrust risks exponentially if they are sharing cost data or drafts of future catalogs with each other. These violations, however, don’t surface that often, because companies rarely engage in such blatant improprieties in easily detectable forums. Violators tend to stick with handshakes in smoke-filled rooms.

 

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