Erring on the Side of Antitrust Enforcement When in Doubt in Data-Driven Mergers

By Marina Lao (Seton Hall University)

This essay was written as part of a tribute honoring Judge Douglas H. Ginsburg, US Court of Appeals, DC Circuit.

This essay makes a case for tilting in favor of antitrust enforcement when in doubt in cases involving “big data”-driven mergers, but continuing to adopt a cautious approach toward claims of unlawful exclusions against dominant digital platforms that are seemingly based on their collection (and use) of large amounts of user data through organic growth.

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