The U.S. Federal Trade Commission opened a broad inquiry this week into Apple Inc., Alphabet Inc., Amazon.com Inc., Microsoft Corp. and Facebook Inc.'s acquisitions of smaller companies between Jan. 1, 2010 and Dec. 31, 2019, and whether they have harmed competition.

The new probe comes even as the FTC and the U.S. Department of Justice continue other antitrust investigations of the big tech giants and whether they are restraining competition in online search, social media and retail; and after congressional hearings about whether their market dominance is damaging consumers' privacy.

U.S. Representatives led by Rep. David Cicilline, D-Rhode Island, and other members of the House Antitrust Subcommittee have so far held five public hearings since last spring and demanded hundreds of internal documents about the big companies' business practices, especially with respect to data collection. And in Europe, Alphabet's Google is appealing more than $9 billion in fines from the European Union from three rulings for allegedly using its market dominance to give itself an advantage over rivals.

General counsel in other companies and other industries may think big tech's antitrust woes don't affect them, but they should reconsider, said David Reichenberg, an antitrust litigator and member at Cozen O'Connor. "Investigation into big tech companies has ramifications for other companies in tech and non-tech," he said. 

While the investigations are ongoing in the tech space, they could have broader implications, said Jon Dubrow, antitrust partner at McDermott Will & Emery and co-head of its antitrust mergers focus group. Following are some of the considerations for other types of companies:

  1. Increased regulatory attention and allocation of resources to the tech industry may cause non-tech sectors to feel as if they are no longer the focus of regulatory scrutiny in the absence of a specific complaint, but that could be a mistake.

The FTC and DOJ haven't taken their eyes off the ball of other industries, antitrust lawyers said.

"For companies that are not in the tech space, the fact that the FTC is looking at transactions that were reportable under Hart-Scott-Rodino but not challenged at the time, as well as transactions that are not reportable under HSR, means the government can look at the lawfulness of a transaction at any time, including well after it has closed. And having a transaction that is not reportable, you could still have substantial antitrust issues that you need to pay attention to," Dubrow said, clarifying that his comments were not made in connection with any of the tech companies currently involved in regulatory antitrust probes.

General counsel should think carefully about antitrust risks, even in the absence of attention from a government enforcer, Reichenberg said.

  1. Investigations could have spillover effects on companies that engage with or rely on those big tech platforms, and/or collect data similarly.

"If there are aspects of your business that mirror aspects of other businesses that are being investigated, you would want to be proactive about the steps you are taking to be able to explain why you are handling a parallel or similar issue in a way that a government regulator would approve of," Reichenberg said. Listen for the questions around business strategy and data collection and consider what your business' strategy is around similar issues.

"Also, if you are consuming products that are made by others, and facts are being assessed on those products, what could be the spillover effects on your consumption of those services? Don't just say it doesn't apply to me; it might apply to you. If you were answering the same questions, what would your answers be? It is worth giving thought to those issues," he said.

  1. Antitrust investigations could have an impact on business negotiations between Big Tech and other companies, for example, as in the FTC-Qualcomm case.

With respect to the lawsuit now before the U.S. Circuit Court of Appeals for the Ninth Circuit in San Francisco, in which Qualcomm is appealing a lower court's decision siding with the FTC that the company's practice of making phone manufacturers sign patent licensing agreements before selling them microchips was anticompetitive, Reichenberg said: 

"If you are the general counsel, the fact that there are fact-gathering and assessments going on could impact the way you conduct a business negotiation. One of the points made in [Thursday's] Qualcomm's oral argument [on Feb. 13] is that Qualcomm was licensing its IP so that the technology could be shared widely, so that more people could buy its products. If that is going to result in a lawsuit, that could have a significant impact on how companies conduct negotiations. You want to be cognizant if something you are trying to negotiate is the subject of a government inquiry. That's the obvious point, but moreover, you want to be cognizant at the next level of things that could become the subject of an investigation."

"Even if you are outside of technology, be aware of practices and negotiation practices that in any way parallel the transactions happening in tech or other tech companies. To what extent does the potential government fact-gathering investigation have an impact on negotiations that I am about to enter into? It is perhaps easy to slip into an opinion that these fact-gathering investigations don't apply to one's business, but in fact, there are insights and lessons to be learned from what is being gathered and how it relates to what you or your competitors are doing," Reichenberg said.

Those lessons can also inform business strategy and decisions around mergers and acquisitions product development and even sales and marketing practices. 

"It could help you inform your legal outlook, but also have resulting business ramifications on the way you do business," Reichenberg said.

Read More: