In this issue:
Big Data, particularly when part of a merger, poses challenging questions: Is Big Data a product that can create too much market power in a merged company? Can Big Data be a barrier to entry? Does Big Data create anticompetitive price discrimination? And then there’s perhaps the most contentious issue—privacy. Should privacy even play a role in competitive analysis? Our articles, reflecting the wide divergency of answers to these questions, add to the debate on a subject that is just going to keep increasing in importance.
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Big Data!
Big Data in a Competition Environment
Although the FTC has yet to challenge a merger on the basis of a reduction in non-price competition over privacy protections, in some transactions involving data markets the FTC’s challenges clearly lay the foundation for that potential case. Deborah Feinstein (U.S. FTC)
Debunking the Myths Over Big Data and Antitrust
Ultimately competition policy can play a key role in ensuring that citizens get the benefits of a data-driven economy, and in minimizing its risks. Maurice E. Stucke & Allen P. Grunes (The Konkurrenz Group)
The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework
Even in their most plausible forms, the arguments for incorporating privacy and data concerns into antitrust analysis do not survive legal and economic scrutiny. Geoffrey A. Manne & R. Ben Sperry (International Center for Law and Economics)
Big Data as a Barrier to Entry
The fact that “big data” can be an antitrust-relevant barrier to entry has been well established. Robert P. Mahnke (eBay Inc.)
No Such Thing as a Free Search: Antitrust and the Pursuit of Privacy Goals
Privacy and Big Data present new permutations, but familiar antitrust disciplines can be applied to an economy where personal data rather than cash is the currency of payment. Alec J. Burnside (Cadwalader, Wickersham & Taft LLP)
Privacy Considerations in European Merger Control: A Square Peg for a Round Hole
Privacy concerns should not enjoy specific privileges under the European Merger Regulation and there are no sound policy reasons that support their introduction. Richard Pepper & Paul Gilbert (Cleary Gottlieb)
The Proper Role of Privacy in Merger Review
For the rare merger that presents a genuine risk of loss of privacy competition, the most likely harm to consumers would be fairly ordinary: higher prices or lower quality of services, not diminished privacy protections. Darren S. Tucker (Morgan, Lewis & Bockius LLP)
