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The case is an example in which the UK Competition and Markets Authority focused on innovation theories of harm in its assessment. It also is notable in that the proposed remedies would effectively amount to a prohibition of the proposed merger.
On 13 July 2023, the CMA announced that it had decided to refer the Proposed Merger for an in-depth Phase 2 investigation under the Enterprise Act 2002. In its Phase 1 investigation, the CMA found that the Parties compete in the supply of: (i) screen design software (where Figma has established a substantial share of the market and Adobe has been continually making investments), and (ii) creative design software (where Adobe is the industry standard and Figma is an emerging competitive threat).
Likewise, as the CMA remained of the belief that, absent the Proposed Merger, Adobe would have continued to compete with Figma in all-in-one product design and has a strong position in an adjacent market, any partial divestiture involving Adobe assets may not be sufficient to restore the conditions of competition that would have prevailed absent the Proposed Merger.[2]
The approach of the CMA and EC in the Adobe / Figma case indicates an intention on the part of the agencies to continue to be seen as strong enforcers, particularly in the tech space and anywhere innovation or future competition could be seen to be put at risk through merger activity. It serves as a warning that it is important for legal teams to acknowledge the scale of risks that a deal may pose and to address those risks upfront and early.
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13 July 2023: The CMA has referred the anticipated acquisition by Adobe Inc. of Figma, Inc. for an in-depth investigation, on the basis that, on the information currently available to it, it is or may be the case that this merger may be expected to result in a substantial lessening of competition within a market or markets in the United Kingdom.
30 June 2023: The CMA has decided, on the information currently available to it, that it is or may be the case that this merger may be expected to result in a substantial lessening of competition within a market or markets in the United Kingdom. This merger will be referred for a phase 2 investigation unless the parties offer acceptable undertakings to address these competition concerns.
3 May 2023: The Competition and Markets Authority (CMA) is considering whether it is or may be the case that this transaction if carried into effect, will result in the creation of a relevant merger situation under the merger provisions of the Enterprise Act 2002 and, if so, whether the creation of that situation may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
Adobe and Figma called off their $20 billion merger earlier this week after U.K. and EU regulators cited concerns about the future competition among remote collaboration tech platforms for designers. It will still cost Adobe $1 billion.
The billion-dollar termination fee was part of the original planned merger agreement from September 2022. A new termination agreement between Adobe and Figma invoked the payment clause, according to Adobe.
The European Commission (EC), the EU's cabinet government, opened an investigation into the Adobe-Figma merger last August and sent a statement of objections to Adobe last month. In it, the EC said the "proposed acquisition of Figma may reduce competition in the global markets for the supply of interactive product design software and of other creative design software."
Though it's on the hook for the termination fee, Adobe will recoup the capital and developer bandwidth it had set aside for the Figma acquisition at a time it's sorely needed, pointed out Constellation Research analyst Liz Miller. The company can now devote more resources to the continued development of generative AI tools such as Firefly for image generation.
Figma, which describes itself as a "single multiplayer canvas" to design digital products, will continue to release new products and AI features on its own, CEO and founder Dylan Field said in a blog post.
The EC predicted that a merged Adobe and Figma would constrain competition for interactive design tools to create mobile apps, websites and other digital products. Furthermore, it said that on its own, Figma would likely enter the market of vector and raster image-editing tools and take on Adobe's powerhouse applications, Photoshop and Illustrator. A merger would eliminate such competition.
The U.K's Competition and Markets Authority provided its own detailed analysis. It concluded that the merger -- and concomitant lack of competition -- would negatively affect digital designers in the U.K. New companies were unlikely, due to barriers to entry such as assembling technical teams and building cloud services requiring scale. Even if that did happen, the customer costs of vendor-switching would likely be prohibitive.
Potential future competition is a subjective idea, leading legal scholars to call the doctrine time travel, for short. The U.S. Federal Trade Commission has used it to challenge tech mergers, which has led legal observers to predict that private-sector litigants could follow.
The billion-dollar question is: Could this scuttled Adobe-Figma deal chill future tech mergers and acquisitions? Miller predicted it's possible. More likely, it revealed a better playbook for tech vendors to succeed when they interact with regulators: Educate them so they don't extend the "time travel" metaphor to draw bad conclusions -- such as overestimating Figma's ability to launch viable Photoshop and Illustrator competitors, she said.
The acquisition, which would have been one of the largest takeovers ever of a private software maker, was a massive bet that more creative work will be done on the web, a market that Figma has rapidly seized. While Adobe has introduced less-expensive, streamlined products for that audience, most of its offerings are still desktop programs aimed at specialists.
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