7.1 Introduction
Monopoly is fundamentally a problem of imbalance of power among a firm’s counterparties: the suppliers, workers, managers, shareholders, and consumers who do business with the firm.Footnote 1 The archetypical monopoly oppresses a particular counterparty – consumers – by charging them high prices for the products they buy from the monopoly.Footnote 2 In this case, consumers suffer, and one or more of the firm’s other counterparties benefits: shareholders if the additional profits are paid to them as dividends; workers if the additional profits are paid to them as higher wages; suppliers if the additional profits are paid to them as higher supply prices; and managers if the additional profits are paid to them as higher executive compensation. But a firm can monopolize any of the markets in which the firm does business, not just the consumer-facing markets into which the firm sells its products.Footnote 3 The firm can monopolize – technically, monopsonizeFootnote 4 – supply markets, labour markets, management markets, and even the market for investments in which shareholders compete (though that is unlikely because capital markets are so large).Footnote 5
Every market monopolized by a firm is an opportunity for the firm to oppress the particular counterparty that stands on the other side of the market from the firm by charging the counterparty monopoly prices. In the extreme case in which the firm monopolizes all of the markets in which the firm does business – supply markets, labour markets, management markets, investment markets, and product markets – the firm has the ability to oppress all of its counterparties. Which counterparties will the firm actually oppress or, more to the point, which counterparty will the firm not oppress and will thereby benefit from the oppression of the other counterparties? Some party must benefit, as the firm is just the sum of its counterparties, a nexus of contracts, and cannot oppress for its own independent benefit.
The counterparty that the firm will favour is the counterparty that dominates the governance of the firm. That controlling counterparty will be able to induce the firm to charge monopoly prices to other counterparties but not to itself, and indeed will induce the firm to transfer the firm’s monopoly profits to it. Therefore, not one but two sorts of power determine whether a firm will exercise monopoly power. First, the firm must actually have monopoly power in some market (with monopoly power defined as the ability profitably to manipulate the prices charged to the counterparty in that market).Footnote 6 Second, some other counterparty of the firm must have sufficient power over the governance of the firm to then induce the firm to exploit its ability to charge monopoly prices by actually charging them and then turning the resulting profits over to the controlling counterparty. In the classic case, the firm that charges consumers high prices does so only because (1) the firm has a monopoly position in the market in which the firm sells its products and (2) shareholders of the firm – counterparties in the market for financing in which the firm also participates – use their control over the governance of the firm to insist that the firm charge consumers the highest possible prices and turn the resulting profits over to shareholders in the form of dividends or share buybacks.
The law, therefore, has not one but two possible ways of dealing with the problem of monopoly. The first is to prevent firms from acquiring monopoly power in markets. That is the traditional role of antitrust law. But antitrust is an imperfect fix because often monopoly power results from superior performance, rather than anticompetitive conduct, and, in such cases, antitrust cannot intervene to eliminate monopoly power without running the risk of slowing economic growth.Footnote 7 The second way of dealing with the problem of monopoly is to prevent any one counterparty of the firm from acquiring so much power over the governance of the firm as to be able to direct the firm to charge monopoly prices to counterparties in markets in which the firm has monopoly power. The great advantage of this second, governance-based solution is that, unlike antitrust laws, it can be used to stop monopoly pricing even when the firm has acquired its monopoly position through superior performance and the elimination of that position would therefore be destructive.
But how to prevent any one counterparty from taking control over firm governance? None of the familiar approaches to governance fits the bill. Shareholder-run firms give shareholders control.Footnote 8 Employee-run firms give employees control.Footnote 9 Consumer cooperatives give consumers control.Footnote 10 Supplier-run firms give suppliers control.Footnote 11 Management-dominated firms give managers control. The solution proposed here is to give each major category of counterparty apart from managers – workers, shareholders, consumers, and suppliers – an equal vote in the election of the corporate board that manages the firm. Thus, management will be checked by the other counterparties, and the other counterparties will check each other. This approach will tend to leave managers with a lot of discretion, because oversight will be dispersed among firm counterparties rather than concentrated in one. But it will also provide a democratic check on any attempt by one counterparty to exploit the firm’s monopoly power to oppress the others, one that does not exist when only one counterparty dominates firm governance. The benefit of less exercise of monopoly power may outweigh the cost of less oversight over management.
The fact that the exploitation of monopoly power divides counterparties by enabling some to take from others, combined with the fact that monopoly can strike any market, making all counterparties potential victims of the exploitation of monopoly power by the firm, means that counterparties as a group have an interest in working together to block the exploitation of monopoly power in relation to any one counterparty, much the way a country’s citizens have the incentive to oppose the oppression of any one group of citizens by any other because all are potentially vulnerable to abuse. Counterparties can express this common interest, however, only if they all have a voice in firm governance.
7.2 Using Corporate Governance to PREVENT the Exploitation of Monopoly Power
7.2.1 The Exploitation of Monopoly Power by Firms as a Function of the Governance Power of Counterparties
To see why corporate governance determines whether a firm will exploit monopoly power, consider how wealth is distributed between the counterparties of a firm.
All transactions create surplus understood as the difference between the value the buyer places on the goods and the necessarily lower value the seller places on them.Footnote 12 Price divides the surplus between buyer and seller.Footnote 13 Netting the firm’s cash inflows and outflows gives the overall amount of surplus kept by the firm through all of its transactions in all of the markets in which the firm does business. The rest of the surplus goes to each of the firm’s counterparties. Thus, the worker who would work for $7 but is paid $12 by the firm takes $5 in surplus. The consumer who would pay $20 but is charged $18 by the firm takes $2 in surplus, the supplier who would sell for $1 but is paid $2 by the firm takes $1 in surplus, and so on. This calculus applies even to the firm’s suppliers of cash qua commodity, the shareholders.Footnote 14 The shareholder who would invest $10 for a 10% return of $1 but receives the equivalent of a 20% return in the form of $2 in dividends takes 10% – $1 – as surplus.
In competitive markets, the surplus taken by counterparties of the firm through the markets in which they transact with the firm is fixed because the firm has no power to vary the prices the firm charges in competitive markets.Footnote 15 The competitive price guarantees counterparties a certain level of surplus that the firm cannot eliminate.Footnote 16 If $12 is the competitive wage, the firm cannot pay $11, because then workers would go to work for the firm’s competitors instead. If the competitive product price is $18, then the firm cannot raise the price to $19, because then consumers would buy from competitors instead. If the competitive supply price is $2, then the firm cannot pay $1 because then suppliers would supply to the firm’s competitors instead. If the competitive rate of return is 20%, then the firm cannot pay a 10% return to shareholders, because then investors will not buy any new shares that the firm wishes to sell and will invest in competitors instead. The competitive price also guarantees the firm a certain level of surplus – the profit that the firm makes in competitive markets.Footnote 17 As a surplus, this profit is technically not necessary to make the firm function.Footnote 18 It represents the excess of receipts over the payments the firm must make to counterparties in order to operate. But, despite representing an excess in receipts over the amount needed by the firm to function, this profit is not due to monopoly – not a monopoly profit – because it is earned in competitive markets. Instead, this profit is due to scarcity, the fact that the firm’s other counterparties are more productive than those with which the firm’s competitors contract. The profit the firm earns in competitive markets is therefore properly called scarcity rent.Footnote 19
The counterparty that dominates the governance of the firm takes this scarcity rent. In an investor-owned firm, that counterparty is the shareholder, whose right to the firm’s share of the surplus – the firm’s profits – is known as the shareholder’s right to the ‘residual’ earnings of the firm.Footnote 20 Thus, the investor of $10 who would be perfectly happy with a competitive $2 return on this investment nevertheless takes an additional $4, $20, or $100 – whatever the amount of the scarcity rents generated by the firm may be. Corporate governance and tax scholars debate what should be done with those scarcity rents.Footnote 21 Putting workers in control of the firm would ensure that workers take them. Putting consumers in control of the firm would ensure that consumers take them. Allowing managers to manage without supervision from other counterparties would ensure that managers take them. A properly designed corporate tax would ensure that the government takes them.Footnote 22 And so on.
But we are not concerned in this chapter with the distribution of the surplus generated by the firm in competitive markets. Monopoly interests us. Suppose, therefore, that the firm monopolizes at least one of its markets. Monopoly power is the power to dictate price, and so it is the power to extract more surplus from a counterparty than the firm would be able to extract in a competitive market. The firm can now pay the worker $7, charge the consumer $20, pay the supplier $1, or pay the shareholder a 10% return, for example, depending on which market the firm monopolizes. But will the firm actually exercise its monopoly power and extract extra surplus from the counterparty in the market that the firm monopolizes? This is where corporate governance meets antitrust. If the counterparty in the market monopolized by the firm has control over the governance of the firm, then the answer is no. The firm will not exploit its monopoly power to extract additional surplus from the counterparty. If the firm monopolizes capital markets (to pick an unlikely example), and shareholders are willing to accept a minimum of a 10% return, then the firm could insist on paying only that 10% return, rather than the 20% that the firm would pay in a competitive capital market. But if the shareholders are in control of the firm, that will not happen. Instead, shareholders will continue to pay themselves the 20% competitive return, plus any scarcity rents generated by the firm in other markets. Similarly, if a firm is dominated by labour, the firm will not exploit any monopoly power the firm may have in labour markets to pay $7 to the worker who would receive $12 in a competitive labour market. Instead, the firm will pay $12 – the competitive wage rate – despite having the power to pay less. And the firm will pay out to workers, as bonuses at the end of the year, any scarcity rents that the firm earns in other markets.
If, however, governance of the firm is dominated by a counterparty other than the one operating in the market that is monopolized by the firm, then the firm will exploit its monopoly power to charge prices that extract additional surplus from the monopolized market. The governance-dominating counterparty will then arrange to appropriate that additional surplus from the firm. The shareholder-dominated firm will, for example, pay $7 to the worker if the firm monopolizes the labour market or $20 to consumers if the firm monopolizes the product market. The shareholders will pay the additional surplus extracted thereby – $5 more from the worker or $2 more from the consumer – to themselves in the form of higher dividends or share buybacks. The additional surplus extracted by the firm due to the exercise of its monopoly power is monopoly rent.Footnote 23 When a governance-dominating counterparty induces a monopolist to exercise its monopoly power, the counterparty extracts from other counterparties not only the scarcity rents that the governance-dominating counterparty would enjoy were the firm to operate in competitive markets but also additional monopoly rents.Footnote 24
This is possible, however, only if the firm has a governance-dominating counterparty. If instead, no counterparty dominates governance of the firm, then the firm will not exploit its monopoly power, and the firm will instead behave as if it were operating in competitive markets even when the firm is in fact monopolizing the markets in which the firm does business. Imagine a firm in which workers, suppliers, shareholders (suppliers of cash subject to no absolute repayment obligation), and consumers were each collectively to have one vote for each member of the board that manages the firm. Management – understood to mean both the board and the managers responsible for day-to-day operations – would, as under current shareholder-dominated business forms, have no vote, but management’s day-to-day control over the firm would presumably give management equal power to defend its own interests, which power would, as under current forms, be checked by those voting on the membership of the board. Under this new structure, each counterparty would insist upon competitive pricing for other counterparties in exchange for others’ insistence upon competitive pricing for itself. For each counterparty would fear that, absent others’ support, the firm might one day seek to charge the counterparty monopoly prices. Thus, each counterparty would vote for board members who insist upon competitive pricing in all markets in which the firm does business, notwithstanding any power the firm may have to charge monopoly prices.
One might reasonably ask why counterparties with equal governance power might not instead seek to demand prices that equalise the division of surplus between the counterparties. In every market in which a firm does business, the firm stands on one side of the transaction, either taking money in or paying money out. After deducting outflows from inflows, the firm divides any resulting profits (such as, in competitive markets, scarcity rents) among counterparties by making cash payments to them (e.g., to the shareholders in a shareholder-dominated firm). One can imagine a firm choosing prices in every market in which the firm does business to ensure that the surplus enjoyed by each counterparty, after accounting both for the value the counterparty derives from market transactions with the firm and for the share of firm profits paid to the counterparty by the firm, is equal.
For example, imagine that a worker, supplier, shareholder, and manager were each to place a value of $8 on what they supply to the firm, the firm were to pay $8 to each, a consumer were to place a value of $42 on the firm’s product, and the firm were to charge $40 to the consumer. In that case, the firm could pay its profit of $8 ($40 less the $32 total cost of buying from the other counterparties) in equal parts of $2 each to the worker, supplier, shareholder, and manager, equalising the surplus enjoyed by each counterparty. The consumer, who would receive no transfer of profits from the firm, would nevertheless retain $2 of surplus in the product market thanks to having purchased a product the consumer values at $42 for a price of $40. There is no reason why the prices required to achieve this equal distribution of surplus – prices of $8 in each buyside market and a price of $40 to the consumer – should be competitive prices. If counterparties with equal governance power were to seek to equalise the surpluses they enjoy, then they would likely not compel the firm to charge competitive prices.
Counterparties having equal governance power would not seek to equalise their surpluses, however, because in order for counterparties to equalise their surpluses, they must reveal private information to each other regarding the value they place on what they supply or buy from the firm. To be able to equalise the surpluses in the example above, the firm must know that the worker, supplier, shareholder, and manager place an $8 value each on what they supply and that the consumer places a $42 value on the firm’s product. To obtain a larger share of firm profit payouts, each has an incentive to lie about this value. The competitive price is, by contrast, one that the firm can find, at least in principle, in an objectively verifiable fashion, even in monopolized markets, by making bids or offers until supply is maximised in sell-side markets or until demand is maximised in buy-side markets. Because the competitive price is an externally determined benchmark, each counterparty can be certain that, in defending the competitive prices enjoyed by others, the counterparty is not falling victim to fraud.
We can, then, state the following theorem: In order for the firm to exploit a position of domination in relation to one counterparty, that counterparty must itself occupy a position of subordination in relation to another counterparty – a counterparty that dominates governance of the firm. Absent that subordination of one counterparty to another, a firm will behave as if it were operating in competitive markets even when the firm is in fact a monopoly.
7.2.2 A Democratic Check on Management
None of the business forms in use today suffices to ensure that no counterparty dominates; they all allow one counterparty or another to dominate governance. The most common type, the investor-owned firm, puts shareholders in control.Footnote 25 Consumer cooperatives put consumers in control.Footnote 26 Supplier cooperatives put suppliers in control.Footnote 27 Employee-owned firms put employees in control.Footnote 28 Non-profits tend to put managers in control thanks to tunnelling.Footnote 29 And so on. To the extent that the favoured counterparty in each of these business organisations actually succeeds at using its power to overcome management – something that is often debatable – these business forms shift the locus of domination away from managers but do not eliminate it.Footnote 30 Shareholder-run businesses will oppress all counterparties but shareholders. Consumer-run businesses will oppress all counterparties but consumers. Worker-run businesses will oppress all counterparties but workers. Supplier-run businesses will oppress all counterparties but suppliers.
One solution would be to expand the corporate board to enable each category of counterparty to choose an equal number of seats, effectively diffusing control over management among all counterparties in a bid to balance power between them.Footnote 31 But that would make the board vulnerable to deadlock, as the interests of the firm’s various counterparties are heterogeneous.Footnote 32 A better solution is to grant each category of counterparty the right to vote for all board seats: one vote each for shareholders collectively, workers collectively, other suppliers collectively, and consumers collectively. This would ensure that individual board members would not be beholden to any particular counterparty and so the board, once elected, would be able to act decisively as a unit. Indeed, the effect would be to strengthen management because there would be no possibility of total subordination to a controlling shareholder or other single counterparty. But this stronger management would still be subject to a check: the ability of the firm’s counterparties as a group to vote the board out of office at the next election.Footnote 33 That would ensure that collective control does not result in paralysis, while still giving counterparties the power to restrain management if management undertakes actions that threaten all other counterparties as a group. Managers, control over the day-to-day administration of the firm would permit them to protect their own interests as counterparties. Indeed, the challenge will be to prevent managers from oppressing the other counterparties rather than to save managers from oppression.
A majority of counterparties would vote to replace the board in two circumstances. First, a majority would vote against the board when mismanagement threatens the fortunes of the firm generally. An underperforming firm both has less scarcity rent to divide among counterparties and generates less surplus for counterparties through market transactions with them. If a high-performing firm introduces an advanced product, for example, consumer demand goes up, increasing the surplus enjoyed by consumers, and the firm’s profits go up, allowing the firm to write consumers a check for still more value in the form of consumers’ share of the firm’s profits. (In a firm governed by a board elected by all counterparties, as proposed here, counterparties would insist that the firm distribute profits to all counterparties, not just shareholders, as in the traditional shareholder-dominated firm.) The increase in demand also increases the firm’s own demand for labour, investment dollars, and supplies, and that in turn enables counterparties in those markets to increase their own profits – meaning to increase the surplus they take from their market interactions with the firm – in addition to receiving larger payouts of the firm’s profits. Thus, a firm creates a ‘residual’ through high performance that each counterparty captures in part through distributions by the firm to the counterparty and in part directly through doing business with the firm. As a result, all of the firm’s counterparties have an interest in checking management when mismanagement threatens that broadly defined residual.
High performance by a firm sometimes creates winners and losers among the firm’s counterparties, but that is unlikely to prevent the firm from performing at a high level. A firm’s decision to adopt a transformative technology might benefit consumers and shareholders but shift business away from current suppliers and workers, who would then oppose the board.Footnote 34 Or adoption of new technology might benefit a minority of workers but harm a majority of them, causing workers as a group to oppose the board. But so long as the new technology were to increase demand, meaning that it were to expand the pie, counterparties would in aggregate gain enough to compensate the losers for their losses while still forging ahead with the project. Dealmaking between counterparties should, therefore, permit profitable projects to proceed.
Second, a majority of counterparties would vote against the board if management were to attempt to wield the firm’s monopoly power to oppress any one counterparty. All counterparties are vulnerable to oppression, and so each has an interest in maintaining a norm that prohibits oppression for all. A firm has some amount of power to dictate prices in all markets in which the firm operates because every firm is differentiated to some extent from every others firm. Every firm offers a unique set of employment conditions, if only because employment locations differ. Every firm purchases supplies in a unique fashion, at different locations, with differing levels of reliability. Every firm offers a unique investment opportunity to shareholders, and sells a differentiated product to consumers.Footnote 35 The counterparties that do business with a firm therefore prefer the firm to other firms, otherwise, they counterparties would take their business elsewhere. They are, therefore, to the extent of this preference, at the mercy of the firm with respect to the terms the firm dictates to them.Footnote 36 It follows that each counterparty stands to benefit if the firm pursues a policy of competitive pricing instead of exercising its power.
Management, or other counterparties working with management, might try to oppress some counterparties and reward others with the proceeds of that oppression, so dividing counterparties against each other that they cannot effectively check the oppression. This is unlikely to work, however, because counterparties cannot safely assume that a counterparty coalition that rewards them one day will not turn against them the next. As a result, all counterparties have the incentive to defend each other against attempts to exploit monopoly power, lest they, too, one day find themselves victimised by other counterparties. Political democracies run on the same general principle: no one knows who will be next, so it is in everyone’s interest to censure bad behaviour, regardless of whom the target happens to be.Footnote 37 This is true even for investors, who, despite doing business in highly competitive capital markets, are locked into the firm by their investment, and therefore relate to the firm as they would to a monopolist.Footnote 38
The same principle applies to explain why counterparties that operate in markets in which the firm has less monopoly power are likely to vote to protect those that operate in markets in which the firm has more monopoly power: a counterparty never knows when markets will shift and the firm will acquire more monopoly power in the markets in which the counterparty operates. Competition, after all, is more fragile than monopoly, which is why there are antitrust laws.Footnote 39 No counterparty can rely on competition to protect it from the firm in the long run. So every counterparty has the incentive to vote against the exploitation of monopoly power regardless of the identity of the current victim. Consumers enjoying competitive prices today, for example, will want to vote to prevent the firm from using its monopoly power in labour markets to pay below-market wages because tomorrow the firm may monopolize its product markets and try to charge consumers supracompetitive prices. Consumers will then need workers to come to their aid.Footnote 40
To enable counterparties to vote for each board seat, corporate law must extend to all counterparties the organisational support that the law currently affords only to shareholders.Footnote 41 The law must provide workers, consumers, and suppliers, all of whom are often numerous and disorganised, with the same voting rights, majority decision rules, and proxy options as shareholders currently enjoy in electing board members.Footnote 42 But now each member of a counterparty class (i.e. each worker, supplier, shareholder, or consumer) would vote to determine how the counterparty class of which he is a member will vote for each board seat, rather than vote directly for each seat. Workers will vote to determine the board members for which the worker class casts its single vote. Suppliers will vote to determine the board members for which the supplier class casts its single vote. And so on. Thus, corporate law must work to overcome the barriers to collective action that each counterparty class faces and indeed that workers, suppliers, and consumers in particular face to a greater extent than shareholders.Footnote 43
7.2.3 But Is Not Shareholder Control Efficient?
Giving each category of counterparty the right to vote for board members violates the tenet of modern corporate governance theory that efficiency requires that shareholders alone control management.Footnote 44 The principal ground for this tenet is collective action.Footnote 45 In most firms, workers have heterogeneous interests (they work different jobs and receive different levels of pay), consumers have heterogeneous interests (they buy some of a firm’s products but not others, at different times, and for different purposes), and suppliers have heterogeneous interests (they supply different goods). But shareholders all want one thing: the highest possible cash return on their investment.Footnote 46 It follows, the argument goes, that if you put workers, consumers, or suppliers in charge of the firm, their members will fight among themselves and so fail to control management.
Putting all types of counterparties in control of the firm will lead to even more gridlock and indecision than if any one category of counterparty were to control the firm independently. With oversight paralyzed, management would have even more power than it would have under other corporate governance forms, including shareholder control. But the harm to firm performance associated with inadequate oversight of management must be offset by the benefit associated with the democratic check on the exercise of monopoly power that nevertheless would remain, however weak that check might be. It is not clear that the harm outweighs the benefit. Indeed, my proposal to give a measure of control to all counterparties addresses a glaring defect in another key tenet of modern corporate governance theory. Theorists argue that the group that is entitled to the residual profits of the firm – the shareholders in a shareholder-owned firm – should have exclusive control over governance. Maximising the residual is efficient and, the theorists argue, the group that is entitled to the residual will act to maximise the residual.Footnote 47 This view of how to achieve efficiency in corporate governance is correct, but only so long as firms make their profits in competitive markets. If instead firms profit by charging monopoly prices, then maximising the residual, which residual includes monopoly rents as well as scarcity rents, ceases to be efficient, and indeed magnifies inefficiency the more effectively it is undertaken. The more that a monopolist’s prices are pushed beyond the competitive level in order to maximise the residual, the greater the deadweight loss that the monopoly creates.Footnote 48
Corporate governance theorists have traditionally left it to the antitrust laws to solve this problem by ensuring that markets are competitive.Footnote 49 But antitrust is an imperfect tool. Some firms have monopoly power because they have made their own products better than those of competitors, not because they have taken steps to degrade competitors’ products.Footnote 50 Antitrust rightly does not condemn monopoly based on product improvement, and so these firms can charge monopoly prices without fear of antitrust sanction, at least in the United States.Footnote 51 That does not mean, however, that a product-improving monopolist’s monopoly prices cannot create deadweight loss. They do. It follows that corporate governance cannot fob the problem of monopoly off on antitrust, but must address the problem itself.Footnote 52
Embracing my proposed democratic check on management would address the problem of monopoly by ensuring that firms strive to maximise only that part of the residual that is due to scarcity rents rather than the entire residual consisting of both scarcity rent and monopoly rent. That is because, as described earlier, when the governance power of all counterparties is in balance, as it would be under my proposed governance form, the firm will not seek to exploit any monopoly power that the firm may acquire.Footnote 53 The firm will charge competitive prices and earn only scarcity rents. Because of the equality of governance power among all counterparties, the firm will likely distribute the scarcity rent equally to all counterparties, giving each counterparty an incentive to push for maximisation of that rent. Thus, the firm will strive to operate at a lower cost than competitors or to produce better products than competitors, in pursuit of scarcity rent. But the firm will not strive to exploit any monopoly power the firm may acquire along the way. Under my proposed governance form, all counterparties would own the firm, in the sense that all would take some of the residual, and all would, collectively, control the firm, through their democratic check on the board. But because no one counterparty would dominate governance, the firm’s counterparties would take only the healthful, efficient part of the residual – the scarcity rent – and not the unhealthful, inefficient part – the monopoly rent. The unity of ownership and control that is another name for the rule that the taker of the residual should control the firm would be preserved but the profit motive of the owners would be fundamentally altered, due to the equal distribution of power among them, to encompass only maximisation of scarcity rent and not of monopoly rent.
7.3 Managerialism as a Guide
The mid-twentieth century American experience with managerialism hints at what a democratic check on management might accomplish.Footnote 54 Large shareholders dominated firms in the nineteenth and early twentieth centuries.Footnote 55 But management instead came to dominate firms during the long period of economic growth that followed World War II. Small shareholders, who could not muster the majorities required to impose shareholder interests on management, replaced controlling shareholders.Footnote 56 Adolf Berle and Gardiner Means famously fretted during this period that unaccountable managers would exploit their newly democratised shareholders.Footnote 57 They failed to appreciate that other forces worked during this period to constrain managers. Unions gave labour bargaining power in labour markets that prevented managers from exploiting the firm’s monopoly power to depress wages.Footnote 58 And the public sentiment in favour of the regulation of big business made regulation or antitrust breakup an ever-present threat if firms failed to satisfy consumers, who were also voters.Footnote 59 The result was a management that was powerful but nevertheless checked by its counterparties. Subject to this balance of power, managers shrank from the price discrimination that so troubled nineteenth-century consumers, favouring instead uniform and even average cost pricing.Footnote 60 And firms offered workers stable employment, competitive wages, and defined-benefit pension plans.Footnote 61 AT&T, for example, was a pioneer in progressive labour practices in the post-war period. The company also strove for two generations to ensure that the price of a month of local calling would not exceed the price of a medium pizza with two toppings, bundling directory services into the deal.Footnote 62
The success of this mid-twentieth century managerialism reflects the crucial role the balance of power between counterparties plays in restraining the exercise of monopoly power.Footnote 63 Shareholders were the dominant counterparty in the nineteenth century because they tended to own controlling stakes in firms.Footnote 64 Power shifted to managers in the mid-twentieth century because the legal trigger for shareholder power – a majority stake – was no longer pulled, as shareholdings democratised.Footnote 65 This in turn devolved power to managers because corporate governance rules give managers free reign when shareholders lack the votes to replace them.Footnote 66 But managers could not exploit their power because other counterparties, namely workers and consumers, obtained countervailing power during this period.Footnote 67 Unlike what would happen under my proposed democratic check, however, neither workers nor consumers obtained power through corporate governance rules, which remained largely static.Footnote 68 Instead, workers obtained power out in labour markets through unionisation.Footnote 69 And consumers obtained power in the sense that antitrust enforcers, rate regulators, and Congress used threats of enforcement and regulation effectively to cow firms into making concessions to consumers.Footnote 70 But though workers and consumers obtained power by ad hoc means, they nevertheless succeeded at checking managers when necessary. As a result, monopolies such as AT&T shared the wealth despite being under the complete control, as a formal matter, of unaccountable managers.Footnote 71 At the same time, these monopolies were free to leverage their size to achieve economies of scale – something that they could not have done had antitrust enforcers broken them up.
In typical American fashion, a felicitous outcome had been achieved not through reform of the rules that directly bear on the balance of power inside the firm – the rules of corporate law – but instead through a hodgepodge of private solutions (unionisation) and government intervention (antitrust and economic regulation).Footnote 72 Democratising the election of the board, as I propose here, would broaden and institutionalise within corporate law itself the balance of power so haphazardly constructed in the heyday of managerialism.
The collapse of managerialism starting in the late 1970s shows just how important institutionalising the balance of power within the firm really is.Footnote 73 Scholars sometimes suggest that corporate raiders killed managerialism by reconstituting the old controlling ownership stakes in firms or otherwise shifting the balance of power back in favor of shareholders.Footnote 74 But corporate raiding and the cult of shareholder value maximisation it instilled in managers is more likely a symptom of the collapse of the balance of power that underpinned managerialism, rather than a cause. After all, if workers and consumers had continued to enjoy countervailing power, it is not clear why that power would have been less effective in checking a corporate raider or other powerful shareholder than it was in checking powerful management.
The real cause of the collapse of managerialism was the demise of the balance of power upon which it depended. That balance required both the persistence of unions and of public sentiment in favour of the regulation of business, neither of which lasted.Footnote 75 Public support for the regulation of business collapsed in the 1970s, giving rise to deregulation and a drastic weakening of antitrust enforcement in the late 1970s and 1980s.Footnote 76 Because government was no longer willing to provide consumers with bargaining power, management – or anyone in control of management – now could extract surplus from consumers and give that surplus to itself. That in turn meant that there were now rewards associated with buying a controlling stake in the firm and dominating management that had not existed for decades. Those rewards created the figure of the corporate raider. They also enabled managers, acting on behalf of shareholders – or indeed themselves – to finance attacks on the last powerful counterparty of the old order – unions – which went into decline. Profits derived from lower wages and canceled pensions rewarded the attacks.Footnote 77
The part that managers themselves played in the demise of managerialism highlights the role of the balance of power in this story. Managers themselves often raided their own firms.Footnote 78 Perceiving that the government was no longer willing to protect counterparties, managers sought to use their controlling position in corporate governance to take as much of the value that now could be extracted from counterparties as possible. The easiest way for managers to do that was to become controlling shareholders themselves because corporate governance orthodoxy continued to give shareholders the legal right to extract all excess value from the firm.Footnote 79
7.4 Conclusion
In an age characterised by weak antitrust enforcement, it is tempting to respond with a full-throated call for across-the-board promotion of competition.Footnote 80 This temptation must be resisted, because sometimes bigger really is better.Footnote 81 A wiser approach is to recognise that a firm is just the sum of its counterparties, and so the firm will not exercise monopoly power against one counterparty unless some other counterparty of the firm has sufficient control over firm governance to cause the firm to engage in such oppressive behaviour. This suggests that by altering corporate governance rules to prevent firms from coming under the control of any one counterparty and instead leaving firms in the hands of a management subject to a democratic check from firm counterparties, the law can defang monopolists without depriving the economy of the virtues of size. But to do that, antitrust – or rather the antitrust spirit, operating through the law of corporate governance – must strike at the interior of firms, rather than at the markets that surround them.Footnote 82
8.1 Introduction
When a company’s director encounters new business opportunities, a question arises whether they can privately exploit such opportunities or whether such opportunities ‘belong’ to the cooperation. This question is the core issue addressed by corporate opportunity rules in different corporate law systems around the world. This chapter explores how corporate opportunity rules may restrict competition and proposes that further evidence on the effects of such restrictions should be collected. The chapter starts out by setting out the origins and the basic principles of corporate opportunity rules and how their fiduciary origin aims to prevent insiders from becoming competitors. The chapter provides a general account of how these rules might potentially compete focusing on unilateral effects and examines in more detail possible negative effects on dynamic efficiencies. It highlights the importance of collecting further evidence to better understand this complex phenomenon.
8.2 What Are Corporate Opportunity Rules
Instances of protection of a collective business from the misappropriations of material or immaterial assets by insiders have been around for millennia. Roman imperial Rescripta and medieval gilds’ organisational rules already reflected the tension between the necessity to keep assets and trade secrets within the boundaries of the association on the one hand and the attempt to protect the freedom of enterprise of the individual associate on the other.Footnote 1 In the modern corporation, these rules are a manifestation of the directors’Footnote 2 duty of loyalty.Footnote 3 Hence, they are deemed as being one of the core sets of rules that characterise modern corporate law. Besides their primary function of protecting the proprietary’s boundaries of the corporation from misappropriations by insiders, corporate opportunity rules may also create monetary counterincentives to competition by directors with the corporation that employs them.
In modern times, corporate opportunity rules were first introduced in the Anglo-American jurisdictions and subsequently imported also into the German legal system.Footnote 4 Only since early 2000, they have become widespread in most civil law jurisdictions and at times they are included in national corporate governance codes.Footnote 5 Hence, any potential anticompetitive harm, both in terms of static as well as dynamic efficiencyFootnote 6 deriving from the enforcement of corporate opportunity rules, might increase in future with any further expansion of these rules. Regardless of their future expansion through case law, their mere presence may strongly affect the allocation of many kinds of rights among economic actors ex ante. As we will argue in the following sections, the rules may consolidate the power of firms and discourage their insiders from attempting to enter the market.
The essence of these rules is the retention of the value and the fruits of business information within the corporation. Therefore, directors (and other insiders) have to disclose information on new business opportunities before any eventual company-authorised appropriation of corporate opportunities can take place.Footnote 7 An example of a sophisticated version of this kind of rule is point 4.3.1 of the German Corporate Governance Code, as amended in 2015: ‘Members of the Management Board are bound by the interests of the company. When making their decisions they must not pursue any personal interests, are subject to a comprehensive prohibition to compete during their work for the company and must not exploit for themselves business opportunities to which the company is entitled’. If the corporation has not authorised a given appropriation by a director, but the director still appropriates the business opportunity, the corporation can address the situation with the various remedies described in the following paragraphs.
For the analysis of this chapter, the following three specific aspects are particularly relevant and briefly discussed: (1) the industrial relevance of corporate opportunity rules; (2) the remedies that are available against a non-authorised appropriation of a corporate opportunity by a director or another insider; (3) the question of whether corporate opportunity rules are mandatory or not. Section 8.4 then builds upon these aspects and highlights their possible anticompetitive harm.
First, in terms of industrial relevance, corporate opportunity rules may cover a very wide set of cases. To provide an idea of the variety of the situations commonly discussed under the ‘label’ of corporate ‘opportunity’, consider the following. From an industrial perspective, a corporate opportunity can consist of the possibility to acquire the following assets: a trade secret, such as the Pepsi-Cola secret formula;Footnote 8 a cellular telephone service;Footnote 9 a mining licenceFootnote 10 a specific piece of land;Footnote 11 technical equipment (at ordinary market price);Footnote 12 a business (cinema);Footnote 13 stock of the corporation by one of its directors from a third party, at a convenient valueFootnote 14 or in the case of an initial public offering.Footnote 15 A corporate opportunity could also be the offer of a contract to be the developer of a given line of business on the behalf of a third party.Footnote 16
Second, the remedies against misappropriationFootnote 17 can range from damagesFootnote 18 to an action for unjust enrichmentFootnote 19 or even, in certain jurisdictions, a disgorgement of profits,Footnote 20 eventually assisted by a constructive trust (in its personal or proprietary form).Footnote 21
The essence of all corporate opportunity rules could, therefore, be described as the ability of the company to prevent an insider from appropriating part or all of the profits generated from the business opportunity. In other words, corporate opportunity rules may create monetary counterincentives to competition by insiders.
8.3 Corporate Opportunity Rules: A Theory of Unilateral Effects
From an economic perspective, corporate opportunities can possibly be understood in light of the theory of the firm.Footnote 22 As a manifestation of directors’ duty of loyalty to the corporation – along with self-dealing – they are one of the main corporate law rules that are functional to containing agency costs and therefore attract potential equity investors.Footnote 23 Moreover, in those jurisdictions where they are formulated according to the ‘no-conflict’ paradigm or where they include the ‘line of business test’, those rules can be understood as a way to protect what Oliver Williamson refers to as ‘idiosyncratic investments’.Footnote 24 We, therefore, recognise that the enforcement of corporate opportunity rules has an economic justification. The rules’ efficiency justification is based on law and finance considerations by majoritarian doctrine. This means that it is appropriate to protect corporate opportunities against misappropriations by insiders because such protection contains agency costs and stimulates investments in equity. In other words, corporate opportunity rules provide for a regime in which the company has the incentive to invest in insiders or the development of its business because any potential returns cannot be expropriated but are secured by those rules.
Unfortunately, corporate insidersFootnote 25 may often be the most effective potential competitors for a company – especially in highly innovative environments. These individuals have acquired a solid knowledge of the market in which they have operated on behalf of their corporation, often for decades. Especially when they are directors or high-ranking officers, they are usually well aware of production processes, upstream and downstream markets, the relationship between fixed and marginal costs, and the state of the art with reference to innovation.Footnote 26 Not only are insiders well aware of market variables, but also of the specific business strategy of the firm they work for. Once they leave the corporation, the insiders’ competitive advantage may enable them to act much faster as potential competitors than an outsider, pointing straight to the weaknesses of the corporation they have worked for.
Corporate opportunities, which are basically growth and development opportunities, can be the object of a negotiation between a company and its insiders.Footnote 27 But non-zero transaction costs might mean that such negotiations are inefficient.Footnote 28 If the rights to exploit a business opportunity are allocated to the already existing company, that company will tend to grow more easily. In the opposite case, that company’s market power might be progressively eroded.Footnote 29 To a certain extent, corporate opportunity rules can also be compared to non-compete clauses.Footnote 30 Both provide the company with rights against agents working under its umbrella and both have developed from the idea of fiduciary duties towards the company. In this sense, both corporate opportunity rules and non-compete clauses or contracts can be seen as a way of containing hold-up costs. Both provide the company with incentives to invest in their staff/agents so that these individuals provide their principal – the company they work for – with a higher return. However, in contrast to corporate opportunity rules, many States are rather restrictive with regard to non-compete arrangementsFootnote 31 or even prohibit such arrangements, for example as does California. Moreover, collusion between companies to the same end has attracted strong enforcement action by antitrust agencies, as the example of the non-poaching and wage-fixing agreements between Silicon Valley companies shows.Footnote 32
To understand how the corporate opportunity doctrine may be employed strategically to create barriers to entry, one has to distinguish between at least two situations. First, the corporate opportunity doctrine may well be employed appositely to prevent an insider from becoming a direct competitor, on the horizontal plan. This is the most straightforward case. If an insider tries to set up a new company on the basis of business information they obtained during their time in the company, the company will simply ask the court to declare that the new company is held on constructive trust (with subsequent transfer order and/or disgorgement of profits) or ask for damages or for unjust enrichment, depending on the remedies available in the jurisdiction. Second, corporate opportunity rules may serve potentially anticompetitive investment strategies. Companies may revert to (side) strategies that entail operating in upstream or downstream markets. For example, this may happen when a given resource is indispensable for producing a given product at a certain stage of technological development.Footnote 33 An example of such strategic behaviour could be the taking of an opportunity to acquire relevant shares of an upstream market in raw materials that are necessary for the production process downstream. Through the enforcement of corporate opportunity rules, an incumbent company may prevent the insider from setting up a company that operates upstream.
Another related case of strategic use of corporate opportunities might be the possibility to secure the fidelity of distributors. As to contracts with distributors, such practice enables the company to recruit agents for retail operations. There may be different strategies that a company may adopt to try to monopolise downstream markets, when this is crucial for the success of the corporation (for instance, in the case of high-end fashion products). First, if an insider succeeds in setting up a new corporation in the same line of business as the company they work for, the original company may invalidate any newly signed contracts with distributors through the enforcement of corporate opportunity rules.Footnote 34 Second, if a director wants to set up a company in the downstream market, the company again can proceed to vertical integration, claiming the new business through the enforcement of corporate opportunity rules.Footnote 35
There may also be cases that are not related to horizontal competition or vertical integration but that would still be the taking of a corporate opportunity. These cases would usually arise under the ‘potential line of business clause’. Examples are cases involving new commercial practices, such as the US tobacco case in 1940, where the idea was to launch lower quality cigarettes from lower quality blends of tobacco.Footnote 36 Although such commercial ideas may not be innovative in the classical sense, the commercial strategy adopted in this case shares many features of disruptive innovation, to which a significant part of Section 4(b) will be devoted.
There are at least two different categories of anticompetitive harm that may arise by way of the enforcement of a company’s rights in relation to a corporate opportunity. The first category of anticompetitive harm derives from different types of foreclosure (for example, upstream or downstream foreclosure) which we have analysed in detail elsewhere.Footnote 37 The second category pertains to harm to the so-called dynamic competition.
8.4 Potential Negative Effects on Dynamic Competition
One may be tempted to start the discussion on the competitive harm deriving from the enforcement of corporate opportunity way through the ‘classic’ static to a dynamic crescendo. But harm to the so-called dynamic competitionFootnote 38 seems more significant in these cases and is therefore the focus of this chapter. When considering the enforcement of corporate opportunity rules and the effects on dynamic competition, the picture is rather complex, if not contradictory. This complex picture is not only the result of the different kinds of business opportunitiesFootnote 39 but also of the different types of dynamic effects.Footnote 40 A dynamic analysis can take place along the more traditional lines – innovation in connection with research and development (R&D) or the analysis can focus on disruptive innovation. Below we will examine both separately, adding to traditional considerations also more original ones, based on a disruptive innovation approach. In fact, companies are presented with both kinds of innovation. Finally, we will highlight some empirical studies that examine the effects of non-compete clauses on innovation because such clauses are similar to corporate opportunity rules in their effects.
The traditional dynamic competition analysis focuses largely on the relationships between IP rights and competition.Footnote 41 One of the core tenets of IP theory suggests a high degree of temporary protection for fruits of innovation derived from R&D.Footnote 42 Starting with these traditional dynamic efficiency considerations, corporate opportunity rules that attribute to the company the innovative business opportunities seem in line with several ideas grounded in the most established analysis of this type of competition for rather than in the market. First, in markets with high fixed costs and low marginal costs, IP rights are crucial. In fact, it is well known that R&D competition for certain kinds of patents is extremely fierce and that R&D is cost-intensive.Footnote 43 Second, in such markets, investment in R&D carries a very high risk, so the expected returns to the winner must be high. Third, there is an inherent tension between competition, that is competition for innovation on the one hand and monopoly power that is granted temporarily on inventions through IP rights on the other hand.
Business opportunities might take forms that can be protected by means of IP rights, for example, as patents. However, issues related to business opportunities may occur typically before questions about IP and competition arise. Similarly, corporate opportunity rules allow a company to appropriate the fruits of innovations that are not patentable, at least on a temporary basis. Therefore, the rules may be complementary to IP rights in their role of providing incentives for innovation, in particular, where the company has spent resources to support an insider’s invention. Moreover, corporate opportunity rules seem less harmful in terms of competition than IP protection. IP rights are enforceable against everyone, while corporate opportunity rules only give rights to the insider. By contrast, here it could be said that the protection offered by corporate opportunities to innovation is in line with emerging doctrine on IP. Hovenkamp has described the evolution of IP rights as a shift from monopoly to property rights which is visible both in the IP and competition analysis.Footnote 44 Enforcement of corporate opportunity rules can be seen as an expression of a property right expressed through a constructive trust and a subsequent transfer order.
One might therefore argue that enforcing corporate opportunity rules is typically not detrimental from a traditional dynamic efficiency perspective.
By contrast, certain cases of corporate opportunities may be more interesting from another dynamic efficiency, though so far less-explored perspective – disruptive innovation. Christensen’s research on disruptive innovation has shown that innovation derives not necessarily from high expenditures in R&D.Footnote 45 Disruptive innovation usually consists of simplifications brought to an existing product, which has been over-refined by incumbent companies because of sustained innovation. Hence, certain consumers become progressively uninterested in the product because of over-sophistication. Moreover, the innovative simplifications introduced by the disruptive innovator usually are techniques that are not patentable. Quite often disruptive competition comes at a low cost, so there is no need to protect a company’s financial R&D expenditure.
What does that mean for corporate opportunities cases? In such cases, the innovator is an insider. Therefore, the legal framework should provide incentives to innovate. Such incentives can certainly be generated by more liberal corporate opportunity rules, which allow the insider to take at least some corporate opportunities.Footnote 46 In this context, it should also be noted that strict corporate opportunity rules will lower insiders’ incentives to undertake inventions in their free time. In other words, if an insider knows they cannot appropriate the fruit of their invention, there will be no incentive to spend time creating such innovations.
Furthermore, disruptive products tend to offer a set of attributes that is different from the ones offered in the mainstream market. While being innovative, disruptive products typically address a niche of the existing market and serve the low-end rather than the high-end market. Christensen provides many examplesFootnote 47 where low-end innovation conquering a market completely in the medium-long term because incumbent firms were busy refining their old product. From the perspective of corporate opportunity rules, the question is therefore: what would an incumbent company do, knowing that disruptive innovation by means of low-end innovation, in which it is not presently interested, may become a potential foe? Such a company has, in effect, two options: it could develop the opportunity or it could appropriate it and kill it, thereby eliminating potential competition.
The first solution looks like the most efficient one, even from the point of view of a corporation. However, there are several potential drawbacks. First, it would be rather difficult to address all the possible innovations that could be developed by insiders. For example, if ten innovative opportunities arise in a given time, the incumbent company carefully analyses them all and decides that only one is potentially disruptive. Therefore, it uses all its resources for the development of that one innovation. What will the company do with those innovative opportunities it has discarded? While benevolence towards insiders would suggest that these business opportunities may be left to the insiders to take, there is also another, more likely, option. Aware of disruptive innovation and of the limits to predicting accurately whether a given opportunity is disruptive or not, it is rational to appropriate and kill those opportunities that the company is not able or willing to pursue. Practically, the company would enforce the corporate opportunity rule on any kind of innovative opportunity even if it decides not to develop the opportunity and simply let it die. From the point of view of dynamic competition, such behaviour would be extremely harmful.
However, problems might arise even regarding those opportunities that the company appropriates to develop. In fact, the company may decide to use corporate opportunity rules to slow down innovation. In other words, the company may be slower than an insider in implementing innovation, because it is still able to earn from a previous technology without aiming to maximise the speed of innovation. Ezrachi and Stucke have shown this in relation to quality.Footnote 48 Another example is the already mentioned case of tobacco companies in the 1940s. If an insider had taken the opportunity and launched lower-quality cigarettes from lower-quality blends of tobacco, it may well have provided a springboard to later engage in competition with the ‘normal’ tobacco companies.
Finally, as we have explained above,Footnote 49 from the point of view of their economic function, corporate opportunity rules can be compared to non-compete clauses. The effects on innovation of such clauses also provide insights into the possible effects of corporate opportunity rules. There is some evidence that non-compete clauses have a negative effect.Footnote 50 Moreover, Gilson convincingly argued that the absence of non-compete clauses may be an incentive for Silicon Valley inventors. According to Gilson, the unenforceability of employee’s non-compete covenants under Californian lawFootnote 51 fosters intercompany knowledge spillovers, which are renowned as one of the main reasons for Silicon Valley’s economic success over Route 128.Footnote 52 The impact of legal structure on innovation is confirmed by the likelihood of enforcement of the same kind of covenant under Massachusetts law and the lesser success of Route 128.Footnote 53
From a rational perspective, it seems rather surprising that companies would choose to be subject to Californian law that allows former employees to compete freely. One reason why they may choose to do so may be the sociological features of Silicon Valley, as Saxenien highlights. First, in Silicon Valley, loyalty to networks seems to prevail over loyalty to the company.Footnote 54 As a consequence, the boundaries between employers and employees are depicted as ‘blurring’.Footnote 55 Second, despite the existence of a sort of network loyalty, competitive pressure is particularly strong, due to the demand for increasing innovation.Footnote 56 If Silicon Valley’s success in terms of dynamic efficiency is related to the unenforceability of non-compete clauses, then one may have reason to question a strict and inflexible enforcement of corporate opportunity rules.Footnote 57
The unenforceability of non-compete rules seems to highlight the close relationship between competition by insiders and dynamic innovation. Openness to a more flexible approach could be expected in the context of competition by insiders regulated by corporate opportunity rules: this is reflected in the introduction in Delaware corporate law of the possibility to approve an ex ante waiver for corporate opportunity rules. By contrast, such flexibility has not been reached yet by European corporate opportunity rules.Footnote 58
8.5 Open Questions and the Need for Further Evidence
Corporate opportunity rules are among a range of tools that can be employed to prevent insiders from competing with the corporation. As already mentioned, other examples may include for instance non-compete agreements and clauses. In this chapter, we have taken the first step in exploring new frameworks for the analysis of this multifaceted problem. And given the novelty of such a paradigm, it is not surprising that the framing of the competitive harm issue highlighted in this chapter proves difficult in the present competition law framework.
Having outlined the potential of corporate opportunities for significant effects on competition, static and dynamic considerations can be explored. Beyond the static concerns about exclusion on a horizontal level and about foreclosure on a vertical level, dynamic concerns seem far more pressing given the centrality of innovation in contemporary economic systems. Unfortunately, neither the current corporate nor competition rules can presently address these concerns sufficiently. Corporate opportunity rules are usually concerned with a containment of agency costs – although innovation dynamics have been considered in the last reform of Delaware corporate legislation.Footnote 59 In Europe, the absence of such flexibility calls for a strict enforcement of corporate opportunity rules, to defend investors’ incentives to invest in equity. Thus, at least until the focus is on short-term investment returns, it is less surprising that corporate law does not address these concerns.
Indeed, even competition law is not able to provide sufficient tools to address the relevant competition concerns as we have explored elsewhere.Footnote 60 This has in particular to do with the ex post nature of the majority of competition laws. The classical tools of competition law, the cartel, and abuse/monopolisation rules are applied ex post and are ill-equipped to address dynamic and innovation concerns which are naturally forward-looking. The ex ante approach of the merger rules with its focus on future developments would seem better equipped to deal with the dynamic competition issues. Moreover, the comparison to a merger situation seems also closer to the situation at hand. In corporate opportunities cases, it is the future developments that are at issue. Seen from a competition perspective, the question is whether the enforcement of business opportunities would block a (future) competitor.
Elsewhere, we have suggested that a flexibilisation of corporate opportunity rules can help to address the competition problems stemming from such rules.Footnote 61 Crucial is further evidence resulting from cases, as it helps to inform policy discussion and helps in the design of any new corporate opportunity rules regime that takes account of potential negative effects on dynamic efficiency. Thus, future evidence-based research should explore whether the current corporate opportunity rules are in the majority of cases beneficial or harmful from a competition perspective with a special focus on dynamic efficiency. Ideally, such an examination would even go a step further and explore and categorise situations where corporate opportunity rules are more likely to be beneficial and those where this is not the case. For any such examination, the comparison to non-compete clauses might be fruitful comparison.
Case-based evidence should inspire the flexibilisation of standard rules and the relevant burden of proof. As establishing ex ante which kind of opportunity is beneficial to whom would often be a difficult operation, bargaining between the company and directors should play a crucial role – and corporate opportunity rules should inform such bargaining.Footnote 62 Keeping in mind the specific needs related to dynamic efficiency, one might explore whether the rules should allow the director faced with a claim to a corporate opportunity by the incumbent company to argue in its defence a potential harm to dynamic efficiency. In other words, while the standard rule could be that the opportunity remains with the company the director should then be entitled to abduct evidence that it would be more beneficial for dynamic efficiency if s/he were to receive the opportunity instead of the company. This adds a further potential variable to the already complex set of arguments that normally surround ‘classic’ corporate opportunity rule cases.
8.6 Conclusion
Since the Standard Oil saga, competition law has been characterised by periods of harsh enforcement and periods of milder ‘wait and see’ and in this sense it is described as having a highly political connotation when compared to for example corporate law.Footnote 63 Moreover, antitrust agencies are renowned for their periodical focus on specific sectors often requiring the full-time dedication of most of their staff. Therefore, it seems not surprising that a topic such as the one we have dealt with in this chapter has never attracted any attention of any enforcer at all. In this sense, the chapter is not only a call for the collection of more evidence on this topic. It is a starting point of a reflection about certain interactions between corporate and competition law rules, rather than a call for urgent action in this area. Yet, what might be in need of urgent and thorough rethinking are the core aspects of dynamic competition. Today, corporate founders and directors have become the carriers of sophisticated technological knowledge and insight. Rules that affect their freedom to develop their innovative ideas and potential definitely raise questions about potential harms to dynamic competition. And again, this area proves to be challenging and has so far escaped the traditional antitrust metrics inspired by structural analysis which is still based on the structure-conduct-performance paradigm with a focus on significant market shares. Overall, corporate law rules escape the present antitrust prohibitions, and the enforcement of these rules may prevent rare plants’ seeds to sprout into Esperidis golden apple-bearing trees. In other words, the loss in innovation maybe not only be to the detriment of the inventors but also to consumers and society as a whole.
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