China: 当特朗普先生遇上反垄断

Last Updated: 3 March 2017
Article by Dentons  

当特朗普先生遇上反垄断

2016-06-17 反垄断实务评论 作者:大成反垄断团队

"你 看到多远的过去,就能看到多远的未来。"——丘吉尔 

目前在美国正在热烈上演的总统大选吸引了全世界的眼球。如以往一样,除了关注各位候选人在政治以及经济等领域的观点与立场之外,该等候选人对反垄断执法的态度以及拟上台后采取的相关措施也是备受关注。众所周知,不论是在总统大选期间,还是在竞选之前,作为美国共和党总统候选人的特朗普先生始终没有提出其对反垄断执法的看法与态度,尤其是反垄断在经济事务中所扮演的角色。不过,在一向特立独行的特朗普先生长达40多年经商的过程中,其曾三次与反垄断有过"正面交锋"。本文通过对前述三次"交锋"的简要分析,以试图窥探如特朗普先生成功当选总统后对反垄断执法所可能持有的态度。

(1) 1988年:特朗普先生违反美国并购控制法律

作为一个成熟的反垄断司法管辖区,美国有专门的法律对达到一定标准的并购交易进行反垄断审查,即《哈特-斯科特-罗迪诺反托拉斯改进法》(即Hart-Scott-Rodino Antitrust Improvement Act,简称为HSR)。而作为美国反垄断执法机构的司法部(Department of Justice,即DOJ)和联邦贸易委员会(Federal Trade Commission,即FTC)有权对未依法申报的并购交易进行查处。1988年,就特朗普先生直接通过他的投资银行Bear Stearns & Co.收购两家游戏公司的交易,FTC和DOJ均认为涉嫌未依法申报而进行立案调查。最终,特朗普先生以支付75万美元罚款的方式了结本案。

2 80年代:特朗普先生主导 USFL起诉NFL 违反美国反垄断法

1982年,特朗普买下USFL(United States Football League,即美国橄榄球联盟)旗下的新泽西将军(New Jersey Generals)之后,其提议并带领其他俱乐部的股东将USFL比赛时间由春季改为秋季。NFL(National Football League,即国家橄榄球联盟)一直在秋季举行比赛,所以这项变动直接导致了NFL与USFL之间更加直接的竞争。随后,USFL起诉NFL涉嫌一系列排除型的垄断行为,包括与三家主要电视运营商签署了相关合同以阻止USFL获得有效的电视报道与合作,试图"拉拢"USFL持有人包括特朗普本人,等等。

陪审团最终发现:NFL确实在有关市场蓄意获得并维持垄断力量,违反了《谢尔曼法》。但更主要的,陪审团同时发现USFL商业上的弱势是由自身管理不善导致,并不是NFL的垄断行为。上诉法院认为:"为了快速获取营收与避免加大投资, USFL抛弃了传统的春季比赛,尽管他们在春季持有与多个主要电视运营商的有效合同。USFL迫切地希望通过对NFL的起诉能迫使NFL与它合并。如果我们按照USFL的要求对NFL发出禁令,我们将如USFL所愿带给他们想要的结果,纵容他们糟糕的经营策略。"上诉法院维持了一审判决并拒绝签发对NFL的禁止令。USFL于1985年由于经营不善而倒闭。

3 90年代:特朗普先生在博彩业酒店市场遭遇反垄断诉讼

特朗普先生与反垄断"亲密接触"的第三起案例始于1989年。在该案中,特朗普先生受到原告Sands度假村两项指控:(a)试图在大西洋城中部垄断博彩业酒店市场;(b)与Penthouse及其股东串谋试图抑制该市场中的竞争,涉嫌违反《新泽西反托拉斯法》。

由于这起案例涉及的罚款金额巨大,原被告双方都动用了顶级律师团队,耗时四年,耗费总共约5千万美元的律师费。最终法庭判决特朗普先生的行为不会限制竞争。

当年观察员评论道,"这起案例早该结束,但双方强烈又脆弱的自尊心促使这场诉讼变成了人身攻击的战场。比起案例中涉及的巨额财产,本案似乎更关乎于自豪的心理;比起案例中涉及的经济利益,似乎更关乎于自尊心的维护。"

没有结论的结论

通过以上三个特朗普先生与美国反垄断法"正面交锋"的案例,我们可以看出:其既有违反美国反垄断法的并购监管程序而遭受处罚的教训,也有主动出击对竞争对手提起反垄断诉讼的尝试,同时也有试图限制竞争对手的发展而遭遇反垄断战争之深刻经历。目前,我们尚无法判断:特朗普先生与美国反垄断法这三段"亲密接触"会给其一旦当选美国总统后所实施的反垄断执法政策带来多大的影响。但是,我们也许有理由相信:特朗普先生坚持直觉、敢于直抒胸臆的特质,在其成功当选后,会给美国目前的反垄断执法带来或多或少的改变。

民主、共和两党因为对于纯粹的自由市场经济还是政府适度调控方面存在分歧,历来不同政党执政,在反垄断执法态度方面都会有一定的差异和摇摆。正如大成反垄断团队负责人邓志松律师所翻译的Kovacic《反垄断法与经济学》(法律出版社2008年版)前言中提到的那样:

"民主党的反垄断发言人批评里根政府的做法过于狭窄,并以对支配性企业行为的处理作为审查不够充分的例子。从1981年到1992年,里根和老布什的反垄断执法机构仅检诉了总共三起涉及支配性企业的不当行为的案件——这是自1890年《谢尔曼法》颁布以来与其他任何期间相比最小的数字。克林顿政府新任命的官员承诺将引入更具干预性的"后芝加哥"经济概念来应对支配性企业的排他性行为,从而在这一领域恢复联邦政府的作为。

当政府针对诸如美国航空、英特尔和微软这样的商业巨头提起垄断或企图垄断诉讼时,克林顿政府的改革成果立刻变成了轰动性新闻。对支配性企业的诉讼计划标志着执法政策的重大调整,但是其对于反垄断规则的持续性作用尚有待观察。美国航空获得了不利于政府的即席判决,United States v. AMR Corp.(2003年第十巡回法院);联邦贸易委员会以极具争议的条件和解了英特尔案,In re Intel Corp. (1998年联邦贸易委员会同意裁决);而且,虽然司法部在它的一些责任理论上获得了胜利,United States v. Microsoft Corp. (2001年华盛顿特区巡回法院),但是它并未在微软案中取得其主要的救济目标——拆分微软——并且新政府下属的司法部随后在2001年对该案进行了和解处理。"

(感谢实习生赵思予对本文的积极贡献;其目前在美国北卡罗来纳大学主修经济和哲学。)

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