In recent times, the Department of Justice Antitrust Division (“DOJ” or “the Division”) has emphasized, through public comments and court filings, that price fixing through the use of algorithmic software stands as per se illegal under the antitrust laws. Indicative of a shifting frontier in the sphere of antitrust enforcement, these assertions underline the DOJ’s readiness to pursue cases involving this rapidly evolving technology.
As reported by Hogan Lovells, the implications of the DOJ’s stance could be significant for businesses that use pricing algorithms. The mechanism of these regulations emphasizes that price fixing, even when carried out through advanced software solutions, runs afoul of antitrust laws.
Pricing algorithm usage by companies has been on an upward trend for some time now, as businesses seek more efficient and effective ways to set prices. While there are clear economical benefits, they also pose complex issues related to competition laws.
The DOJ’s approach, as articulated in recent comments and filings, clarifies that it perceives algorithms as the new contesting grounds. If the past is anything to go by, we can expect that this signals increased scrutiny and likely more enforcement action relating to algorithmic pricing in the future.
Any corporation or law firm utilizing these technologies would be well-advised to audit its algorithmic practices in light of this spotlighted attention and ensure it is not inadvertently falling foul of antitrust laws. It is increasingly evident that the DOJ is dedicated to pioneering the path ahead in the enforcement and interpretation of antitrust laws as they apply to this new technological frontier.