27. Joint ventures that are collaborations between competitors may warrant antitrust scrutiny. The Antitrust Guidelines for Collaborations Among Competitors issued by the U.S. antitrust agencies in April 2000 describe the principles for evaluating agreements among competitors and the analytical framework for doing so.
23 Two broad categories of anticompetitive harm theories are (1) “exclusion” and (2) “overly inclusive joint venture.” For exclusion, harm may arise if a joint venture denies some key element to rival systems and thereby reduces competition.
24 Whether this is a viable theory would depend on factors such as the freedom that the joint venture’s members have to participate in multiple mobile payment systems (“multi-home”), the extent to which the members, individually or collectively, have market power with respect to the denied element, and the availability of adequate substitutes for that element. For the “overly inclusive joint venture” theory, harm may arise if a joint venture’s membership is so expansive, or its rules sufficiently restrictive, as to prevent the emergence or viability of a rival mobile payment system that might otherwise threaten the joint venture’s market power. Factors relevant to this analysis include the joint venture’s exclusivity, membership scope, whether current members would help form competing systems but for the overly inclusive nature of the joint venture, and if so, the impact of such participation on the timeliness, likelihood, and sufficiency of such entry.
