What Microsoft should demand in exchange for its ‘payment’ to the US government for TikTok

In one of the crazier news stories (and in 2020, that is saying something), President Donald Trump said today during a media availability event that in order for the U.S. government to sign off on a potential Microsoft/TikTok deal, “a very substantial portion of that price is going to have to come into the Treasury of the United States,” based on my colleague Alex Wilhelm’s rough transcript.

That seems nearly impossible to actually execute in reality (corporations don’t just quote-unquote bribe the U.S. government to get their docs signed), but let’s actually take it at face value: Should Microsoft pay, and if so, what should they demand in any bargain with the U.S. government?

First of all, some circumstance. ByteDance, TikTok’s parent firm, was valued at over $100 billion.

ByteDance possesses a suite of programs, such as TikTok’s China-focused and extremely common sister program Douyin, in addition to Toutiao, a very prosperous news reader, therefore teasing out TikTok’s evaluation by itself is tough.

Adding to the ambiguity is that the regulatory turmoil of the bargain, and also the fact that lots of big-pocketed buyers enjoy Facebook are from the running on directly antitrust grounds.

So let us state for illustration the price is $10 billion, or even tens of thousands of billions of bucks. How should Microsoft be considering a discussion with the authorities ?
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The overriding goal should be diminishing Microsoft’s post-acquisition regulatory problems. TikTok has well-documented privacy issues , which also demand adolescents — a place where regulations are sensitive.

When Facebook confronted privacy issues on its own stage, it eventually consented to a settlement of $5 billion final year together with the Federal Trade Commission to merge all the various cases and bring them to your finish.

In addition, it agreed to some constraints in addition to a tracking mechanism to guarantee compliance. TikTok (previously Musical.ly) really consented to a FTC solitude settlement of $5.7 million final year.

In addition to solitude, you’ve got the export licensing problems out of Treasury, data security issues on Capitol Hill on account of the program’s China provenance and possible antitrust problems from Justice.

Thus, it’s time to cut a deal. Give the U.S. government a beefy amount — maybe a few billion based on the last price — as a”settlement acceptable” in exchange for resistance to all claims concerning privacy, commerce and antitrust regulations before TikTok’s acquisition.

Maybe have a set up where Microsoft has 180 times post-acquisition to clean up privacy problems, transfer data to its Azure cloud from the USA, and place in much better parental controls compared to TikTok has introduced in the last couple of months.

Far from having an atrocious installment, this may significantly limit Microsoft’s long-term obligations, and allow the enterprise to prevent a great deal of the escrow and holdbacks standard of substantial M&A deals, in which an acquirer won’t cover the complete acquisition price upfront long-term suits bear substantial costs.

It is dreadful for the president to become involved in this type of thing in such a direct and indelicate manner. He’s got the capability to push an inter-agency procedure, lineup all of the authorities stakeholders and take a degree of immunity in exchange for a”fine”

A settlement can not address every issue. TikTok, such as all net apps in the USA, isn’t only governed by national law but also by country laws about privacy, like the California Consumer Privacy Act.
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A settlement with the federal authorities may still struggle with state laws that are applicable. Additionally, agreeing to a massive payment in the core of election season could be profoundly controversial, maybe on either side of the aisle.

Nonetheless, this bargain is by no means average, and nobody should think that it is going to have normal M&A procedure. While few attorneys would advocate engaging with the national government over what’s a strange type of street robbery — you will find adequate fiduciary reasons to simply pay the cost, get some liability coverage and proceed.