Meta Platforms Inc

We advised Meta in relation to the competition law aspects of its acquisition of Kustomer, a customer service CRM platform.

Key facts

Meta offers three messaging channels: Messenger, WhatsApp and Instagram Messaging. These channels are mainly used for communications between people. However, they can also be used for communications between businesses and consumers (B2C communications). Kustomer is an “omnichannel” CRM platform that brings customer conversations from various channels together into a single-screen view. It helps customer service agents maximise the time and quality of interactions with customers.

Challenges and pressures

Competition authorities worldwide are increasingly interventionist in respect of mergers in digital markets.
Parallel notifications in the EU and the UK introduce new complexities to European merger review.

Key challenges

Meta and Kustomer are both headquartered in the United States. The combination of the Meta and Kustomer’s international businesses required a review of merger control filing requirements worldwide. For these purposes, we maintain detailed databases of over 150 merger control and foreign direct investment regimes around the world, which we keep up-to-date through our own individual country experts and contacts with our international network of competition specialists. Working with our international colleagues, we assisted Meta to secure all of the required competition clearances.

The transaction took place against the backdrop of heightened levels of scrutiny applied to digital markets by competition authorities worldwide. In addition to introducing new legislation to deal with digital transformation, several jurisdictions are increasingly carrying out in-depth investigations of tech transactions and considering novel theories of harm. The merger control review in Europe included several novel factors:

Competition and Markets Authority (CMA)

The end of the EU ‘one stop shop’ applying to the UK means that many deals now face parallel reviews by the EC and the CMA.
Following an intense Phase 1 review process, the CMA announced in September 2021 that it had cleared the transaction unconditionally.

European Commission (EC)

In May 2021, the EC took jurisdiction over the transaction following an Article 22 EUMR referral request by Austria, Belgium, Bulgaria, France, Iceland, Italy, Ireland, the Netherlands, Portugal and Romania.
In August 2021, the EC announced that it was opening a Phase 2 investigation into the proposed acquisition.
In January 2022, the Commission announced that it had conditionally cleared the proposed acquisition. To secure clearance, Meta offered commitments to provide non-discriminatory access to its messaging channels to third party CRMs in Europe.

Bunderskartellamt (FCO)

The FCO did not join its international colleagues in making an Article 22 request to transfer jurisdiction to the EC.
In December 2021, following a declaratory proceeding to investigate whether the deal falls under the German merger control regime, the FCO formally asserted jurisdiction over the transaction.
In February 2022, the Bundeskartellamt announced that it had cleared the transaction unconditionally at Phase 1.