What is a killer acquisition? The term was first employed in the pharmaceutical sector to describe acquisitions by an incumbent of a competitor that threatened to launch a blockbuster drug that would undermine its own products, with a view to shutting it down. In recent times, the term has broadened to cover other industries, notably the tech sector, where companies allegedly acquire startups to acquire their technology, either to quell a nascent threat, or to integrate it to their own offerings, further entrenching their dominance.
In one sense, the theory of harm associated with such acquisitions is intuitive: an acquisition designed to kill innovation would naturally raise antitrust suspicions. But isolating true “killer” acquisitions, and dealing with them within the existing merger control and antitrust framework is far from straightforward.
The “prey” is often a start-up, with insufficient revenues or market share to trip existing merger notification thresholds. As such, many “killer” acquisitions may escape merger control scrutiny entirely, raising the questions of whether such acquisitions should be examined after the fact, or whether merger notification rules should be modified.
Moreover, the acquirer’s intentions are not always easy to divine. Quite often, acquisitions of startups are so-called “acqui-hires,” motivated by the need to hire highly skilled employees. Indeed, large companies acquiring startups can be pro-co...