America’s best companies: You are being watched

A Fortune magazine profile of Carlos Brito, Anheuser Busch InBev’s CEO, includes a remarkable comment by the article’s author, tossed off as an aside, as if it’s common knowledge and nothing to get excited about: “In the U.S., AB InBev is basically at its limit, with 46% market share; it cannot exceed 50% without incurring the DOJ’s wrath.”

What that means is that AB InBev dare not acquire more than half the market for beer in America, lest the Department of Justice file suit under the Sherman Antitrust Act for “attempting to monopolize.” Make no mistake: the DOJ poses a real threat. At a minimum, a lawsuit means huge litigation expenses and management time diverted from productive work to legal defense—and at worst, it can mean billions of dollars in treble damages, forced changes to business practices, involuntary breakup, and even jail time for executives.

And it’s not just the American market that’s legally capped. The creeping tentacles of antitrust law extend all over the world. AB InBev, you may recall, fell victim earlier this year to legal extortion by the DOJ, which forced the company to sell off valuable assets (a Mexican brewery, and the U.S. distribution rights to Corona and Model beer) to a direct competitor. Why do I call it extortion? Because at the time, the DOJ was withholding permission for AB InBev to merge with Grupo Modelo, a big Mexican brewing company.

The point is this: Antitrust law’s reach is much broader and more insidious than might appear from the headlines (when, say, Apple is sued for “price fixing” or big airlines are sued for wanting to merge). Businessmen are subject to what Ayn Rand called a “silent reign of terror.” The antitrust ax can fall at any time. By means of such continuing threats, political forces centrally plan the economy—regulators decide which industries can develop and how, who can merge with whom, and how much business the most successful companies can do.

Image credit:  Joel Olives via Compfight

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