Amazon/iRobot: harbinger of legal dissonance, or lesson in unintended consequences?

Abstract

This article examines the process that resulted in the abandonment of Amazon’s proposed acquisition of iRobot in light of the Statement of Objections issued by the European Commission and the substantive provisions of the newly enacted Digital Markets Act. It questions whether the Commission could have credibly challenged the deal on the basis of concerns that Amazon may have had the ability and incentive to engage in certain potentially harmful conduct that would already, to a not insignificant extent, have been prohibited ex ante under the Digital Markets Act. While a more vigilant approach to merger control may be warranted in response to perceived historical underenforcement, intervention motivated by the increasingly popular sentiment that competition in digital markets is suffering a ‘death by a thousand cuts’ should be underpinned by a cogent theory of harm. Insights may be drawn from an emergent ecosystem theory, which seeks to refocus the lens of competition law from narrow market definition to capture a broader network of complementors. However, it is suggested that the decimation of iRobot precipitated by regulatory over-reach stands in diametric opposition to the broad objectives espoused, in particular, by a new generation of competition officials. Ultimately, this article questions whether the outcome of the Commission’s investigation in Amazon/iRobot stands as a harbinger of legal dissonance, or a lesson in unintended consequences.