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Emory Corporate Governance and Accountability Review

Abstract

The term “Big Tech” is referred to: Amazon, Apple, Facebook (Meta), Google and Microsoft. These companies are the five largest multinational online service or computer hardware and software companies and have the top position in the stock market by market share. Data indicated that these five firms have made over 700 acquisitions from 1987 to 2019. (Google 32%, Microsoft 31%, Apple 15%, Amazon 11%, and Facebook 11%). After 2001, The DOJ and FTC began to use NAICS codes to report HSR (Hart-Scott-Rodino) transactions. The code name is NAICS 518 for data processing, hosting, and related services (mainly including Google, Amazon, Facebook). Over 200 transactions were reportable between 2001 and 2017 and only one of which was challenged by the DOJ in federal district court – the Google/ITA case. This rate, as a percentage of transactions cleared to the agencies over the period, is about 3%, which is significantly lower than that of 13% across all sectors.

All this data raises controversy in relation to the effects of the dominance and overpowering of the Big Tech to innovation and market entry; incentives to compete on price and nonprice dimensions; and the potential for AI-driven biased pricing and other theories of harms. In realizing this growing power of the Big Tech and underenforcement in regulations, US Senator Josh Hawley proposed the bill of “Bust Up Big Tech Act” on April 19th 2021, which will “crack down on mergers and acquisitions by mega-corporations and strengthen antitrust enforcement to pursue the breakup of dominant, anticompetitive firms,” according to him.

In section 2, this article examines the US regulations on both horizontal and non-horizontal mergers and the evolution of the law in the past 60 years. In section 3, the article looks at how the law interacts with the Big Tech merger and acquisition activities and introduce the shortcomings to the existing system. In section 4, the article in-depth analyses the theories of harm and what would happen if an authority banned all the mergers and acquisitions for the Big Tech. In section 5, the article briefly expresses the authors’ view regarding to what extend the authors agree with “The Big Ban(g) Theory.”

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