Empresas na beira do buraco, lutando contra a insolvência, tem de observar regras de direito concorrencial nas medidas que toma para salvar-se da falência? Nem sempre. Algumas concessões são geralmente feitas neste tipo de situação. Mas, geralmente, empresas em grandes dificuldades financeiras precisam provar muito mais que estão perdendo dinheiro para invocar o que os autores norte-americanos chamam de failing firm defense. Fusões ou aquisições de empresas em dificuldades financeiras sempre envolvem uma ponderação das restrições concorrenciais, para, se for o caso, após um cálculo das eficiências da operação, superar algumas delas e permitir a continuidade da empresa. No trecho abaixo, Carl Shapiro (U.S. DoJ) expõe muito bem o que é a failing firm defense. O discurso na íntegra está aqui.
“A recession causes more firms to experience financial distress. There are likely to be more bankruptcies in 2009 than in recent years when the economy was stronger. Some firms may otherwise be viable but have made financial mistakes that combined with the recession have driven them into bankruptcy. Others will limp along until the economy recovers. All in all, it seems reasonable to expect that there will be an increasing number of mergers and acquisitions in the months ahead involving weak or failing firms or divisions. There may also be an element of opportunism at work, as some firms attempt to use the current economic conditions as a pretext to secure approval of what would otherwise be judged an anticompetitive merger.
While I am always open to new evidence and new arguments, and while judgment certainly must be exercised in cases involving weak or failing firms, so far I have seen no evidence, and heard no arguments, that would lead me to conclude that the current circumstances require a fundamentally different test than has been applied in the past to failing firms and divisions, as outlined in Section 5 of the Horizontal Merger Guidelines. (38) If a merger involving a failing firm or division really will benefit consumers by generating cognizable efficiencies, that merger will meet the stringent standards of the failing firm test in the Guidelines.(39)
Importantly, the failing firm defense automatically incorporates the possibility that the merger will generate cognizable efficiencies. The key point is that there would be no good economic reason for a successful firm to pay a premium to buy a truly failing rival in the absence of any such efficiencies: acquiring the failing rival would not protect the successful firm from competition, since (by definition) the failing firm’s assets would otherwise leave the market. So it must be some synergy that makes the failing firm’s assets especially valuable to the acquiring firm. These arguments apply regardless of whether the overall economy is in recession or not.
The fact that a firm has been losing money does not mean that it is a ‘failing firm’ in an antitrust sense. To begin with, accounting losses do not necessarily correspond to true economic losses from ongoing operations, especially for firms that have taken on substantial debt. Beyond that, the requirements of the failing firm defense are designed to identify those limited circumstances in which the firm’s assets would exit the market but for the proposed acquisition. If the firm owns important assets whose value is greatest in their current use, these assets are unlikely to exit the market, even if the firm cannot meet its financial obligations in the near future. One signal of this situation is that investors place greater value on the firm or division as an ongoing concern than in liquidation. Other evidence regarding the value of incumbency is also relevant to this inquiry.
One can also ask whether some mergers may be pro-competitive, even if the acquired firm does not meet the failing firm test, because the acquired firm is financially weak. This is sometimes called the ‘flailing firm’ defense. In principle, of course, there can be efficiencies when one firm acquires its financially weak rival. However, following Section 4 of the Horizontal Merger Guidelines, to invoke an efficiency defense, the merging parties would have to establish that these efficiencies are large enough so that consumers are not harmed by the loss of competition resulting from the merger. While it is possible that a merger will generate efficiency by improving the acquired firm’s access to capital, this is a very delicate argument, for several reasons: the acquired firm may soon have improved access to capital as the economy improves; the acquired firm may be able to gain improved access to capital through other means, in which case the claimed efficiency would not be merger-specific; the merged entity may well have less incentive to make investments, due to diminished competition, even if its cost of capital is lower than the financially weak firm; the acquiring firm’s cost of capital may go up as lenders look at the overall credit risk of the merged entity; and, if access to capital is generally restricted, even for projects with an above-normal rate of return, entry to provide competitive discipline may be difficult. In any event, these are some of the factual considerations that could come into play in a given merger investigation.”