Feb 17, 2021
Amazon documents reveal company's secret strategy to dodge India's regulators
Feb 17, 2021
It was early 2019, and senior Amazon.com Inc executive Jay Carney was preparing for an important meeting. The former press secretary to U.S. President Barack Obama, Carney was scheduled to talk with India's ambassador to the United States in Washington, D.C. In Delhi, the Indian government had just announced foreign direct investment regulations that threatened to disrupt Amazon's business in the world's second most populous country.
Before the meeting, Amazon employees prepared a draft note for Carney. The note, reviewed by Reuters, advised Carney what to say – and what not to say.
He should highlight the fact that Amazon had committed more than $5.5 billion in investment in India and how it provided an online platform for 400,000-plus Indian sellers. But he was cautioned not to divulge that some 33 Amazon sellers accounted for about a third of the value of all goods sold on the company's website.
That information, the note advised, was "Sensitive/not for disclosure."
Other company documents reveal equally touchy information: Two more sellers on the e-commerce giant's India platform – merchants in which Amazon had indirect equity stakes – accounted for around 35% of the platform's sales revenue in early 2019.
That meant some 35 of Amazon's more than 400,000 sellers in India at the time accounted for around two-thirds of its online sales.
All this information was indeed politically sensitive. If it got out, it could give fresh ammunition to small Indian retailers who allege that Amazon harms their businesses by flouting federal regulations and favoring a few big sellers.
It could have annoyed Prime Minister Narendra Modi, whose political base includes millions of these small retailers. And it would have undercut Amazon's public messaging that it is the friend of small business in India. As the company says in one marketing slogan in India, it is "transforming lives, one click at a time."
What Carney wound up telling the ambassador is unclear. A meeting did take place in April 2019, but neither side would comment on the specifics of the gathering.
The briefing note for Carney is contained in hundreds of internal Amazon documents that are reported here for the first time. News of their contents could deepen the risks facing the company as it encounters intensifying government scrutiny in one of its fastest-growing markets. The documents lay bare that for years, Amazon has been giving preferential treatment to a small group of sellers on its India platform, publicly misrepresented its ties with the sellers and used them to circumvent increasingly tough regulatory restrictions here.
Indian traders, both brick-and-mortar and smaller online sellers, have long alleged that Amazon's platform largely benefits a tiny number of big sellers and that the American giant engages in predatory pricing that has crushed legions of retailers. Amazon rejects this: It says it complies with Indian law, which stipulates that an e-commerce platform can only connect sellers to buyers for a fee, unlike in the United States, where Amazon can both act as middleman and sell goods directly to consumers.
The company also says it runs a transparent online marketplace and treats all sellers equally. The internal Amazon documents contradict those claims, revealing how the e-commerce giant has helped a small number of sellers prosper, giving them discounted fees and helping one cut special deals with big tech manufacturers such as Apple Inc. The documents also show that the company has exercised significant control over the inventory of some of the biggest sellers on Amazon.in, even though it says publicly that all sellers operate independently on its platform.
The documents reviewed by Reuters are dated between 2012 and 2019. They include drafts of meeting notes, PowerPoint slides, business reports and emails. One of the notes contains a frank appraisal of Modi's "straight forward" style of thinking, sizing him up as "not an intellectual." Together, they provide a look inside a cat-and-mouse game Amazon has played with India's government, adjusting corporate structures each time the government imposed new restrictions on foreign e-commerce firms, amid growing agitation from small retailers.
Amazon "does not give preferential treatment to any seller on its marketplace" and "has always complied with the law," the company said in a written response to questions from Reuters. "The reporting appears based on unsubstantiated, incomplete, and/or factually incorrect information, likely supplied (maliciously) with the intention of creating sensation and discrediting Amazon." The company added that it "treats all sellers in a fair, transparent, and non-discriminatory manner, with each seller responsible for independently determining prices and managing their inventory."
Modi's office and India's Ministry of Commerce and Industry didn't respond to questions from Reuters.
Amazon has become one of the two biggest e-commerce platforms in India, with close to $10 billion in sales in 2019, according to Forrester Research. The American giant knows it faces significant regulatory risks here.
In recent years, Amazon has stated in its annual U.S. Securities and Exchange Commision disclosures that its business structures and activities comply with Indian law, but that there are "substantial uncertainties" regarding their interpretation. It is possible the Indian government "will ultimately take a view contrary to ours," the disclosure states. And a violation of any existing or future regulations or a change in their interpretation could result in the business "being subject to fines and other financial penalties" or being forced to restructure or "shut down entirely."
Charged political environment
In January 2020, India's antitrust watchdog, the Competition Commission of India, announced it was investigating Amazon and Walmart Inc's Flipkart following a complaint by an Indian trader group. The commission cited four alleged anti-competitive practices: exclusive launch of mobile phones by the e-commerce firms, promoting preferred sellers on their websites, deep discounting, and prioritizing some seller listings over others.
The probe is currently on hold after a challenge by Amazon and Flipkart, the other major e-commerce platform in the country.
Separately, Amazon is under investigation by India's Enforcement Directorate, the federal financial crime-fighting agency, which has been investigating the company for possible violation of foreign investment rules. Such probes typically take years in India, and in most cases details aren't made public.
Asked about the investigations, Amazon said it was confident of its compliance and committed to cooperating with the antitrust watchdog and Enforcement Directorate. Flipkart did not respond to a request for comment.
The Competition Commission and Enforcement Directorate didn't respond to questions.
Amazon is operating in a charged political environment. The rise to power of Modi, who first won election in 2014 on a groundswell of Hindu nationalism, has made life complicated for multinational companies. Hindu nationalist groups, suspicious of foreign influence and often critical of large multinationals, are seeking policy changes to protect domestic businesses. Companies like Alphabet Inc's Google, Facebook Inc and Mastercard Inc have also faced stringent regulation. In the case of e-commerce, the restrictions are aimed at protecting brick-and-mortar retailers.
Despite the regulatory and political obstacles, Amazon has enjoyed explosive growth in India. The expansion has been led by Amit Agarwal, a senior vice president and the country manager for India. Agarwal, 47, who has a master's degree in computer science from Stanford University, has risen through the ranks since joining the company in 1999.
By his early 30s, he'd become a close adviser to Amazon founder Jeff Bezos. One company document, which details his profile, includes these lines: "Amit was chosen to be Jeff's technical Advisor at a young age of 33. 'Technical advisors' are a chosen few that work side by side with J Bezos and are then selected to take on some of the most critical roles at Amazon."
Agarwal enjoys playing electric guitar and was a vocalist during his Stanford days in a rock band called Algo-Rhythms, according to a recent version of his profile on the alumni page of the Indian Institute of Technology, where he got a computer science degree. He is also a "die-hard fan" of comedian Jerry Seinfeld, according to the profile.
Under Agarwal, Amazon has ramped up investment in India. The country is one of Amazon's most important growth markets – especially since it announced in 2019 that it would no longer operate its marketplace in the most populous nation, China, where it faced stiff local competition. On a visit here in January last year, Bezos announced Amazon would spend $1 billion to bring small businesses online in India. That would take the company's total committed India investment to $6.5 billion.
But India also poses unique challenges to the business model that made Amazon the biggest online retailer on the planet. Because foreign investment regulations in India bar e-commerce firms from holding inventories of goods and selling them directly to customers, companies like Amazon can only collect fees from vendors selling products on their marketplace.
Globally, about 58% of Amazon sales of physical goods in 2018 came from third-party merchants; the rest come from direct sales to consumers, the company has disclosed. The ability to sell straight to people in the United States and elsewhere packs big benefits. It means Amazon can deal directly with manufacturers, for one, giving it greater control over its product range.
It is this barrier – the regulatory wall around the consumer – that Amazon has been trying to overcome for much of the past decade in India.
When Amazon arrived in 2004, it created a development center aimed at servicing its global operations. Agarwal, who helped set up the operation, recalled on an Amazon blog in 2019 how his team initially rented cubicle space in another company's office and "used to sit on the ground and write code" because they didn't have chairs. Today, the company says it has 100,000 employees in India.
Amazon's main foray began in 2013. It started listing books and DVDs on Amazon.in, its online platform. Since then, Amazon has taken an aggressive approach to government limits on e-commerce.
"Test the Boundaries of what is allowed by law," said one slide in a 2014 presentation, titled "Risk Analysis." The slide advised that preparations be made in the event of a visit by an enforcement body: "Establish a Strong Dawn raid Process."
Asked about the slide, Amazon said that "dawn raid preparedness" is "standard worldwide practise" and refers to the training of employees "to handle site visits from officials pertaining to police, fire services, law enforcement and other services personnel on government duty."
To deal with the restrictions on direct sales, Amazon found an indirect way of reaching consumers and boosting sales quickly. It entered a joint venture with an entity formed by one of India's most famous tech moguls, N.R. Narayana Murthy, founder of software services giant Infosys Ltd. The venture was used to create a seller named Cloudtail, which began offering goods on Amazon.in after it was set up in August 2014.
Amazon has said that Cloudtail is an independent seller on its marketplace. A year after Cloudtail was created, Amazon told Indian business newspaper Mint that Cloudtail received "the same privileges as any of the other sellers on our platform."
But Amazon has been deeply involved in expanding Cloudtail – often referred to as "SM," or "Special Merchant," in the documents.
"The Special Merchant (SM) was launched in Aug-14 and we helped SM quickly ramp up and gain scale through Q4," stated an Amazon India report, dated Feb. 23, 2015.
"Launch, stabilize, grow Special Merchant; make it profitable," the report said.
Amazon had big plans for Cloudtail. The target was to ensure Cloudtail accounted for 40% of Amazon.in sales, "and build this into a $1+B business" in 2015, according to the report. To that end, the report reveals, Amazon helped Cloudtail "acquire key relationships" with major tech companies, including Apple, Microsoft and OnePlus. This included exclusive deals with these companies to sell their products, such as smartphones. The tech companies got a big new sales channel, while Cloudtail got coveted products that it listed on Amazon.in.
Amazon said in its statement that it facilitates "the introduction of brands to sellers" in accordance with the brands' requirements.
A spokesperson for Cloudtail and Murthy said they had no comment. Apple and OnePlus didn't respond to questions. Microsoft had no comment.
The deals Amazon facilitated with smartphone makers, coupled with deep discounts Cloudtail was offering on the Amazon website, hit India's offline mobile sellers hard, said Arvinder Khurana, president of the All India Mobile Retailers Association.
"The entire market was disturbed," said Khurana, whose trade group represents 150,000 mobile retail stores. "There's been a year-on-year decline in sales" at brick-and-mortar shops, he added.
Currently, e-commerce accounts for 4% of India's roughly $900 billion retail market, according to Forrester Research. But it's growing fast.
While some 10% of smartphones in India were being sold online in 2013, by 2016 that figure had jumped to 30%, according to Forrester. By 2019 it was 44%. And Amazon and Flipkart dominate these sales, accounting for roughly 90% of all online smartphone sales, said Forrester analyst Satish Meena.
Brick-and-mortar retailers told Reuters they're struggling to compete with the online giants. One mobile phone seller in the city of Ahmedabad said that while he was selling an iPhone 11 for 56,000 rupees ($769), a customer told him it was going for around 47,000 rupees ($645) on Amazon.
'There is no business'
For Mumbai mobile phone merchant Narendra Gada, the competition was ruinous. In 2013, he said, his business was doing well. It enabled the 44-year-old to support his family of three, selling around 20 phones a day at his store in the upmarket Colaba area. His monthly sales, he said, were around 10 million rupees (about $137,000). "Margins were good at that time," Gada recalled, as high as 25% on some models.
Everything changed in 2015 with the expansion of online sales of smartphones, he said. He couldn't compete with the exclusive launch of smartphone models online or the discounts being offered, he said.
By 2016, his sales had dropped some 40%. Customers would come to his shop to try smartphones, ask for the WiFi password and then go online to buy the model they'd just sampled, he said. In 2018, Gada began selling at lower margins and on credit to keep sales alive. Late last year, he shut the shop he'd started in 1998. The final straw was the pandemic-induced lockdown. But he said it was the advent of online sales that killed his business.
"There is no walk-in now," he said. "There is no business."
In its statement, Amazon said, "Facts communicate a different reality. Small businesses are increasingly embracing technology and finding success online."
The company said that it now had over 700,000 sellers on its platform, most of them small and medium businesses, and had "no incentive" to keep the number of sellers down. It also said that tens of thousands of Indian manufacturers are using Amazon to sell to consumers abroad, so far generating cumulative sales of $2 billion. And for millions of consumers, of course, the discounts offered on Amazon's platform are a boon.
About two months after Cloudtail's launch in August 2014, Bezos met Modi in New Delhi. A draft document containing talking points was prepared for the Oct. 3 meeting. It makes no mention of Cloudtail or its plans.
One key objective of the meeting, according to the document, was to discuss barriers to foreign investment in the e-commerce sector.
The document also included a brief appraisal of the Indian leader. "PM Modi is not an intellectual or an academic but believes that strong administration and governance is the key to running a successful government," it said. "He is known to like simple, logical, straight forward thinking without excessive academic jargon."
Asked about the description of Modi, Amazon said it was committed to the prime minister's vision for India's digital economy and believes it can help by getting 10 million medium and small businesses online, among other steps.
Both in public and in private meetings, Agarwal emphasized that Amazon was helping the little guy. Ahead of a scheduled meeting with India's ambassador to the United States in January 2016, a document was prepared for Agarwal and other executives. "We are committed to transforming lives of SMBs," or small-and-medium businesses, reads a talking point contained in a draft of the document.
In March 2016, Cloudtail's share of sales on Amazon.in was around 47%, an internal document shows. Amazon does not make such numbers public.
But that month, Amazon got some bad news: The Indian government announced new foreign investment rules. It capped online marketplace sales from a single seller at 25% of total sales, which was seen as an attempt to level the playing field. To comply with the cap, Cloudtail's share of sales on the Amazon platform had to be brought to 25% or less.
The new rules also required that an e-commerce platform "will not exercise ownership over the inventory" sold on its site. Internal company documents show that Amazon was effectively treating Cloudtail's inventory as its own at the time. In a May 2016 document, for instance, the company explains that "we will need to move a subset of this selection" of smartphones from Cloudtail "to other sellers," to comply with the 25% limit.
That's what it did. Amazon moved the procurement of some mobile phone brands Cloudtail was offering to Amazon Wholesale, a wholesale business-to-business operation in India which did not fall under the foreign investment restrictions. Amazon Wholesale then supplied these products to "certain" sellers, who in turn sold them on Amazon.in, according to a 2016 internal global regulatory update.
"As government policies have continued to evolve, we have consistently made the necessary changes to ensure compliance at all times," Amazon said when asked about the documents laying out the maneuver. "The so-called facts stated here fail to show any non-compliance" with foreign investment rules.
Amazon has repeatedly said it has no role in pricing goods sold online in India and that prices are decided by sellers. The new 2016 government rules explicitly stated that "e-commerce entities providing [a] marketplace will not directly or indirectly influence the sale price of goods or services and shall maintain [a] level playing field."
Following the rule change, however, Amazon lowered the fees it charged some big sellers on its platform to enable them to offer more competitive prices. "We adjusted our business model by activating a fee incentive program (Platinum Seller Program or PSP) to provide discounted fees to a subset of large managed sellers (Platinum Sellers) to help them match" prices of e-commerce rivals, said the global regulatory update document.
In addressing the 25%-of-sales cap on a single seller, Amazon also proposed having a second special merchant, in addition to Cloudtail. It estimated the two special merchants would together account for about half of the sales on its platform.
In 2017, a new special merchant named Appario – referred to as "SM2" in an internal document – was created. This time, Amazon entered into another joint venture, with an entity backed by the family of Ashok Patni, a pioneer in the Indian IT outsourcing sector.
One internal Amazon document from 2019 states that the two special merchants get "subsidized fees" and access to Amazon global retail tools. These tools are used for things like inventory and invoice management.
Amazon said its marketplace fees depend on the category of product and the season of the year, and are "uniformly applicable to all like sellers."
Appario and a Patni representative did not respond to requests for comment.
Even after India implemented new investment rules in 2016, relations between Bezos and the Modi government seemed good. That June, the Amazon boss received a business leadership award from Modi at a U.S.-India Business Council event in Washington. Bezos told the audience how small sellers were benefiting from Amazon's India marketplace. He announced he planned to invest a further $3 billion in the country.
In 2016, Amazon launched its Prime Video streaming service in India and introduced its voice-recognition speakers the next year. It has also ventured into food retail and expanded its cloud-computing business.
In late 2018, Amazon's major annual online sales promotion, the Great Indian Festival, was a smash. During the big sale, India head Agarwal rejoiced in an internal email to employees.
The first 36 hours of the sale "surpassed every event in our history," he wrote.
"We had our biggest day ever for Smartphones, with estimated 3 out of every 4 smartphones sold in the entire country (online or offline) purchased on Amazon.in – this is truly phenomenal."
With a national election looming in April 2019, the Modi government struck again. In December 2018, it announced new restrictions that prohibited vendors in which marketplaces such as Amazon have an equity interest from selling products on these marketplaces. The aim, government officials told Reuters at the time, was to deter deep discounting by big online retailers.
The new limits forced Amazon to restructure its relationships with Cloudtail and Appario, the two special merchants in which it held indirect stakes. As company documents showed, the two then accounted for around 35% of Amazon's online sales.
The regulatory change was widely seen in India as a move by Modi to pacify small traders, a critical part of his party's electoral base. It was this change to the foreign investment rules that Amazon executive Jay Carney wanted to discuss with the Indian ambassador at the time, Harsh Vardhan Shringla, in Washington. Shringla is now India's foreign secretary.
Asked about the Carney meeting, Amazon said, "we cannot comment on specifics of the meeting as those are confidential."
Shringla's office said in a statement: "The meeting in question was at Amazon's request." It didn't provide any detail on what was discussed.
In the early hours of Feb. 1, 2019, thousands of products being sold by Cloudtail and Appario vanished from Amazon's website in compliance with the deadline for the new rules. But days later, the products were back as Amazon reduced its equity stake in the parent companies of the two sellers. This maneuver, the company believed, made it compliant with the new rules, according to the internal document from 2019.
Amazon's relationship with the Indian government was growing more contentious.
In June 2019, Commerce Minister Piyush Goyal dressed down e-commerce executives, including Amazon's Agarwal, telling them in a meeting they must comply with the new rules. Goyal was blunt, said one executive who was there.
"We will not let e-commerce impact small shopkeepers... I know there have been many issues of non-compliance," the executive said, summarizing Goyal's remarks. "So think about it, set it right. If you don't, we will make things public, it will be put in the public domain and you will be embarrassed."
Then came the news of the antitrust probe into Amazon and Flipkart in January 2020, the same month Bezos was making another trip to India. Traders staged small street protests, holding up placards with a red "X" emblazoned on a picture of the Amazon CEO's face and the words, "Jeff Bezos Go Back!"
Commerce Minister Goyal diminished the company's announcement of a further $1 billion of investment. "It's not as if they are doing a great favor to India," he said.
There was another salvo in August: A group of more than 2,000 online sellers filed an antitrust case against Amazon and Cloudtail, alleging Amazon favors some retailers whose online discounts drive other vendors out of business.
Amazon and Cloudtail have both said they comply with all laws; the Competition Commission of India has yet to decide whether to order an investigation into the matter.
And there is another threat: Mukesh Ambani, India's richest man and chairman of Reliance Industries, one of the country's biggest conglomerates, is expanding his e-commerce business. Reliance did not respond to a request for comment.
Despite the challenges, Amazon continues to grow. Last year, it began offering auto insurance and announced it was launching an online pharmacy service.
It also continues to tout itself as a platform for the little guy. For its big annual sale in October, it ran a front-page newspaper ad that read: "Celebrating India's Small Businesses and Entrepreneurs."
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