Data, Innovation, and Potential Competition in Digital Markets – Looking Beyond Short-Term Price Effects in Merger Analysis

By Terrell McSweeny & Brian O’Dea – 

Evaluating mergers in digital markets requires enforcers to consider a number of factors beyond short-term price effects. One crucial factor is the competitive significance of data and its potential role as a barrier to entry. Innovation and quality effects are also important to consider in digital markets, including those that may arise on the “free” side of two-sided platforms. Finally, enforcers should aggressively safeguard potential competition in digital markets, including pursuing cases under Section 2 of the Sherman Act where dominant digital firms seek to acquire companies with prospects for future entry that are “more than fanciful.”