2. Can you identify and prove efficiencies?

If you participate in an exchange you should be prepared to show that it results in procompetitive benefits for the participants and the market as a whole. Such market benefits, or efficiencies, might include reduced administrative costs, enhanced systems integration or better supply chain management.

While it’s crucial to argue that your B2B marketplace is creating these efficiencies, just arguing isn’t enough. You need solid evidence that these efficiencies are real or at least plausible. Ideally, you want real-world evidence showing that your B2B participants are experiencing lower costs and enhancing the competitiveness of the marketplace (without raising unacceptable antitrust risks). Evidence of prospective efficiencies might help too, but only to the extent that you can demonstrate them through real-time business records, not just through documentation manufactured simply to shake off antitrust suspicion.

Our widget manufacturers, for example, should be developing specific estimates of the money and time they and their customers can save through electronic purchases. Perhaps they should hire consultants to estimate the reduced costs of completing electronic transactions compared with the standard sales process and all of its attendant paper, phone calls and delays.

3. Is the B2B venture the only game in town?

Exclusivity is an important factor in assessing B2B exchanges’ antitrust risks. If B2B collaborations bar participants from leaving, the possible anticompetitive effects may become more tangible and definitive. They may also cause antitrust problems if they block nonparticipants from joining. The challenge is that there may be legitimate, even procompetitive, business reasons for restricting the ability to join and leave B2B marketplaces.

The underlying question is whether a B2B collaboration’s exclusivity affects the ability of participants and industry players to compete. This question requires an investigation to see whether competitively viable alternatives to the B2B exchange exist, and whether the exclusivity restrictions are tailored to accomplish their procompetitive purposes. The hypothetical widget manufacturers should be careful about precluding additional participation if nonparticipant competitors don’t have the ability to form a competitive B2B marketplace. If widget sales alternatives are limited, at the least the exchange should enable participants to leave if they want to offer their widgets elsewhere.

4. Is the B2B exchange managed independently?

There are many possible ownership, organizational and managerial frameworks you can use to structure your B2B collaboration. But from an antitrust perspective, there are sound reasons why some frameworks are better than others. You run a higher risk of antitrust problems if you or your partners have contributed significant financial investments to the exchange that might reduce your ability or desire to compete independently. You also face greater antitrust exposure if your B2B venture is jointly organized and governed by participants instead of an independent third party. Our widget manufacturers will reduce their antitrust exposure if they establish their B2B marketplace as a separate entity with its own board of directors, officers and facilities.