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Republican lawmaker readies bill mandating foreign subsidy disclosures for mergers

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Rep. Scott Fitzgerald, R-Wis., is seen during a group photo with freshmen members of the House Republican Conference on the House steps of the Capitol on Monday, January 4, 2021.

Tom Williams | CQ-Roll Call, Inc. | Getty Images

A Republican lawmaker is readying a bill that would require businesses subsidized by foreign governments to disclose that information when they pursue large mergers subject to U.S. regulatory review.

The bill, led by Rep. Scott Fitzgerald, R-Wisc., and tentatively named the “Stopping Foreign Government Subsidies for Mergers Act,” would require businesses backed by state-owned entities to notify regulators of that backing when they report a deal of more than $92 million in value.

That additional information can help regulators assess how a company might act once merged, Republican Federal Trade Commissioner Noah Joshua Phillips, who supports the legislation, told CNBC in an interview Wednesday.

Noah Phillips, commissioner, Federal Trade Commission, testifies during the Senate Commerce, Science and Transportation Committee hearing tilted The Invalidation of the EU-US Privacy Shield and the Future of Transatlantic Data Flows, in Russell Building on Wednesday, December 9, 2020.

Tom Williams | CQ-Roll Call, Inc. | Getty Images

“Our presumptions in the law and the way we do our work are based on the notion fundamentally that firms profit maximize. They seek to make money,” Phillips said. “But state-owned entities don’t necessarily have the pursuit of profit as their ultimate motive, and as a result, they may not act in the same way as the companies that we normally look at do.”

A firm that values certain political objectives over profits might make a different calculation when it comes to the risk of pursuing anticompetitive conduct, like steeply undercutting rival prices only to raise them later on. While Phillips declined to speculate on the types of conduct in which a state-owned entity might engage, he said it would help to know their potential incentives in order to assess the facts of each individual case.

As it stands, regulators may become aware of a foreign government subsidy in a merger case, but Phillips said requiring that information up-front will allow them to “develop expertise and ask the right questions.”

The bill builds on a recommendation last year from the bipartisan U.S.-China Economic and Security Review Commission. In its annual report to Congress, the commission recommended the FTC have a system in place to determine how proposed transactions are influenced by such foreign government support.

The commission found that the Chinese government would back companies it saw becoming national champions and eventually push them to expand into the U.S. and other countries.

“This process assists Chinese national champions in surpassing and supplanting global market leaders,” the commission wrote in its annual report to Congress.

The commission said “China’s trade-distorting practices” mean that “U.S. workers and companies, no matter how innovative and efficient, struggle to compete when the Chinese government so decisively tilts the playing field in favor of Chinese companies through a variety of legal, regulatory, and financial mechanisms, and when U.S. companies are granted access to the Chinese market, it is at the cost of transferring valuable intellectual property to their Chinese counterparts.”

The group warned that the risk is particularly acute when it comes to emerging technologies, where China allegedly seeks to “surpass and displace the United States altogether.”

“Failure to appreciate the gravity of this challenge and defend U.S. competitiveness would be dire,” the commission wrote. “Because these emerging technologies are the drivers of future growth and the building blocks of future innovation, a loss of leadership today risks setting back U.S. economic and technological progress for decades.”

Though Fitzgerald said he’s in the early stages of engaging with colleagues about co-sponsoring the bill, he said he believes China’s apparent willingness to devote major resources toward corporate subsidies could rally lawmakers on both sides of the aisle behind the proposal.

The bill would not place any national security assessment requirements on the antitrust agencies, which Phillips said are best left to the existing agencies responsible for that type of review. The Committee on Foreign Investment in the U.S. (CFIUS) within the Treasury Department is already responsible for reviewing national security implications for mergers with foreign entities, for example.

But Phillips and Fitzgerald said there remains a need to assess foreign-subsidized businesses from a potential harm to competition perspective, which is squarely within the antitrust regulators’ purview.

Doug Melamed, a Stanford University law professor and former Acting Assistant Attorney General of the Antitrust Division at the Department of Justice, said one possible outcome of such legislation, if passed, would be a chilling of mergers with state-owned entities.

“The most important effect of that kind of requirement might be to deter the acquisition in the first place,” Melamed said. “Because if the Chinese have some interesting stake in company X that would not ordinarily surface … this might deter it if they don’t want their position to be known.”

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Crew cupola window view in orbit

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The first look at the crew in orbit, from left: Jared Isaacman, Hayley Arceneaux, Chris Sembroski, Sian Proctor.

Inspiration4

Inspiration4, which launched with Elon Musk’s SpaceX on Wednesday evening, shared the first photos from day one in orbit and gave an up-close look at the expansive views of Earth from the spacecraft’s “cupola” window.

The crew spent its first day in orbit floating in zero gravity inside the capsule, taking photos from the Crew Dragon window and spoke to patients of St. Jude Children’s Research Hospital, answering questions from space.

The historic private mission — which includes commander Jared Isaacman, pilot Sian Proctor, medical officer Hayley Arceneaux and mission specialist Chris Sembroski — is orbiting the planet at an altitude of 585 kilometers (363.5 miles), which is above the International Space Station and the highest altitude humans have traveled in years.

Inspiration4, which is expected to return to Earth and splash down this weekend, was paid for by Isaacman for an undisclosed amount, with the main goal of the spaceflight to raise $200 million for St. Jude.

Hayley Arceneaux takes in the view of Earth from the Crew Dragon cupola window.

Inspiration4

SpaceX modified the top of Crew Dragon capsule Resilience to add a massive window for the astronauts, replacing the docking hatch that is under the spacecraft’s nose cone with the cupola.

Spacecraft commander Jared Isaacman speaks into a microphone as he peers out the cupola window.

Inspiration4

The cupola is the largest window by surface area ever put in space.

Mission specialist Chris Sembroski is seen taking a photo through the cupola, from an exterior camera on Crew Dragon.

Inspiration4

Isaacman is the third billionaire to fly to space this year, following Sir Richard Branson and Jeff Bezos in July. But the latter two — flying with their respective companies, Virgin Galactic and Blue Origin — spent only a couple of minutes each in space, as those companies’ rockets fly on what are known as suborbital trips. In contrast, Inspiration4 is an orbital mission, with the crew spending multiple days in space and going around the Earth as many as 15 times in day.

Musk, among those who saw them off before launch, tweeted that he spoke to the Inspiration4 crew Thursday and that “all is well.”

“Missions like Inspiration4 help advance spaceflight to enable ultimately anyone to go to orbit & beyond,” Musk wrote in another tweet.

SpaceX CEO Elon Musk poses with the crew before launch on September 15, 2021.

John Kraus / Inspiration4

The Inspiration4 crew is making history in ways beyond becoming the first group of nonprofessional astronauts in orbit: Proctor is the first Black female to pilot a spacecraft, and Arceneaux is the youngest American and first person with a prosthesis to fly in space.

Check out more photos from launch day at NASA’s Kennedy Space Center in Florida:

Medical officer Hayley Arceneaux points to the camera as she and pilot Sian Proctor board the Tesla Model X after suiting up before the launch on September 15, 2021.

John Kraus / Inspiration4

SpaceX’s Falcon 9 rocket lifts off carrying Crew Dragon spacecraft Resilience on September 15, 2021.

John Kraus / Inspiration4

The view inside the Crew Dragon spacecraft about 30 seconds after liftoff as the Falcon 9 rocket accelerated away from Earth on September 15, 2021.

SpaceX

The shimmering exhaust plume of SpaceX’s Falcon 9 rocket launching into the dusk sky above Florida on September 15, 2021.

John Kraus / Inspiration4

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Tesla to reverse solar price hike for some customers: legal filing

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Smith Collection/Gado | Archive Photos | Getty Images

Tesla is trying to placate some solar customers who say they faced sudden price hikes earlier this year, according to new filings with the U.S. district court in San Jose, California.

In a Thursday filing, customers’ attorneys wrote, “Tesla informed counsel for Plaintiffs that Tesla had recently launched a program for customers who signed Solar Roof contracts before the April 2021 price changes to return those customers to their original pricing (if they were subject to a price increase in April 2021).”

As of Friday afternoon, further details of this program were not apparent on Tesla’s solar websites nor the Engage website for customers and advocates of the company. CNBC reached out to plaintiffs’ attorneys and Tesla to get further details about the program. They did not immediately respond.

This spring, frustrated Tesla solar customers sued the company after experiencing surprise price increases.

Filings in three separate lawsuits alleged that Tesla solar customers had already signed contracts with Elon Musk’s electric vehicle and renewable energy venture, and even prepared to have solar photovoltaics installed at their homes, when they were surprised by sudden price hikes that required additional payments to move ahead with their installations.

The price hikes were not trivial. For example, plaintiff Matthew Amans’ solar roof price shot up from around $72,000 per his original contract to around $146,000, according to lawsuit filings.

Those lawsuits were later consolidated into Amans v Tesla, Inc.

Tesla hiked prices for its solar installations at least twice early this year, and made it a requirement for customers ordering solar panels or roof tiles to order the Powerwall home energy storage system as well. Later, CEO Elon Musk revealed that the company would not be able to make enough Powerwalls to keep up with demand this year because of the ongoing microchip shortage.

Overall, solar remains a fairly small part of Tesla’s business. Tesla reported energy generation and storage revenue of $801 million in the second quarter of 2021, with a cost of revenue of $781 million for that division. The company does not break out revenue from solar on its own — the unit includes revenue from its lithium-ion battery energy storage systems, which range from home backup batteries to giant, utility-scale systems.

By way of comparison, Tesla booked $10.2 billion in automotive sales during the quarter.

Here’s the legal filing.

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Elizabeth Holmes pushed faster Theranos Walgreens rollout: Testimony

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Elizabeth Holmes, CEO of Theranos, attends a panel discussion during the Clinton Global Initiative’s annual meeting in New York, September 29, 2015.

Brendan McDermid | Reuters

SAN JOSE, CALIF. – A former Theranos scientist testified Friday that Elizabeth Holmes pressured her to validate blood test results from the company’s Edison machine to speed up a rollout in Walgreens despite problems with the device’s accuracy.

Surekha Gangakhedkar, a senior scientist at Theranos for eight years who reported directly to Holmes, testified that she returned from a vacation in August 2013 and discovered that Theranos was about to launch its Edison blood-testing devices in Walgreens stores.

“I was very stressed and unhappy and concerned with the way the launch was going” Gangakhedkar said. “I was not comfortable with the plans that they had in place so I made a decision to resign and not continue working there.”

Gangakhedkar recalled meeting with Holmes in September 2013 about the issues that prompted her resignation.

“At that time she mentioned that she has promised to deliver to the customers and didn’t have much of a choice then to go ahead with the launch,” Gangakhedkar said becoming emotional on the stand.

“Ms. Holmes said she didn’t have much of a choice?” asked Robert Leach, an assistant U.S. attorney.

“Yes,” she replied.

Despite signing a non-disclosure agreement, Gangakhedkar said she printed some documents and took them home when she quit because she was “worried about the launch, I was actually scared that if things do not go well I would be blamed.”

Gangakhedkar was granted immunity from criminal charges in exchange for her testimony.

She testified that in August 2013 she didn’t think the Edison 3.0 and 3.5 were ready to be used for patient testing, adding “there were problems with getting consistent results.” However, Gangakhedkar recalled that Holmes was pressuring the team to validate the tests even though “in my opinion she was aware,” of the accuracy issues.

Holmes is fighting 12 charges of wire fraud and conspiracy to commit wire fraud, and has pleaded not guilty. In opening statements, her defense attorney told jurors that Holmes was an ambitious young woman who made mistakes but didn’t commit a crime.

Earlier in the day, Erika Cheung, a former lab associated turned whistleblower, concluded her testimony after three days on the stand. Cheung recalled that frequent quality control failures in the lab created substantial delays in test results for patients.

“We had people sleeping in their cars because it was just taking too long,” Cheung testified. “Every few days we were having to run samples over and over again.”

Cheung, who quit Theranos six months after joining as a college graduate, said she “became concerned probably a month in with the Vitamin D samples.”

Gangakhedkar’s testimony continues on Tuesday. Among the insiders the government plans to call to testify next is Daniel Edlin, a project manager who reported directly to Holmes and worked on the Walgreens partnership. Edlin was also friends with Holmes’ brother, Christian.

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