Antitrust Issues With AI and Pricing Algorithms: Increased Regulatory Scrutiny, Risk of Collusion, Recent Litigation
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Antitrust
- event Date
Thursday, February 6, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss the increased scrutiny and potential anticompetitive practices relating to the use of artificial intelligence (AI) and algorithmic tools when making pricing decisions. The panel will examine recent regulatory efforts, agency enforcement actions, proposed legislation, and antitrust cases addressing the prevalence of pricing algorithms and the potential for price fixing and provide compliance considerations for advising clients in this evolving legal landscape.
Ms. Sicalides’ practice covers the full range of antitrust and competition matters. She routinely handles antitrust litigation, conduct and merger investigations, and counseling, as well as distribution disputes and arrangements, for domestic and international companies. Her antitrust litigation experience includes a wide range of antitrust claims, such as class action and individual plaintiff actions. Additionally, this experience includes actions challenging agreements among competitors such as price fixing, customer allocation, output restraints, and other similar horizontal agreements. Ms. Sicalides has extensive experience responding to government investigations of alleged cartel activity, including price-fixing and market allocation. She also advises clients on acquisitions and joint venture transactions before the FTC, DOJ, state attorneys general, and international regulatory agencies. Ms. Sicalides is also experienced in non-merger civil and criminal antitrust investigations before the enforcement agencies, and defends against antitrust class actions and individual claims. Her counseling practice also involves helping international and domestic companies to minimize or avoid antitrust liability, and to implement effective compliance programs. Ms. Sicalides speaks regularly and has authored numerous articles and book chapters on competition-related issues. She is immediate past chair of the ABA Business Law Section Antitrust Committee.
Companies seeking antitrust clearance for their mergers and acquisitions, or that are parties or third parties in investigations and litigation launched by the FTC, the Antitrust Division of the DOJ, or state attorneys general, turn to Mr. Gilman for experienced and effective antitrust counsel. He leverages years of experience at the FTC, including three years as head of a merger division, to represent clients in a broad range of antitrust and competition matters, including antitrust diligence and deal negotiations, merger reviews and clearances, government investigations, Hart-Scott-Rodino and foreign merger notifications, civil conduct matters, general antitrust compliance, trade association counseling, and antitrust litigation. Mr. Gilmanʼs practice has a particular focus on representing merging parties and third parties in merger investigations by the FTC, DOJ, and state attorneys general. He brings significant prior government experience and knowledge to his client work, having joined the firm after seven years at the FTC, where, as assistant director, he led the 30-attorney Mergers IV Division and worked on some of the agencyʼs highest-profile matters.
AI and algorithmic tools have significantly evolved to help businesses optimize their pricing strategies. However, the use of such tools presents potential issues for competition and antitrust compliance.
During the last few years, there have been four main federal antitrust cases alleging that certain providers of algorithmic pricing tools and their users have violated the Sherman Antitrust Act. In three of the cases, the Department of Justice and Federal Trade Commission filed Statements of Interest supporting the plaintiffs' positions and outlining the agencies' opinion about what the legal principles applicable to claims of algorithmic price fixing should be.
Congress has also been focused on algorithmic collusion and price fixing. In early 2024, several members of the Senate introduced the Preventing Algorithmic Collusion Act, which seeks to increase transparency when companies use algorithms to set prices and presumes a price-fixing "agreement," when direct competitors share competitively sensitive information through a pricing algorithm. While this proposed legislation has been stalled in the Senate, it demonstrates the growing concern and increased scrutiny of using algorithms to determine pricing and the potential for collusion.
Counsel must understand the current regulatory landscape surrounding the use of AI and algorithmic pricing to effectively advise their clients on implementing antitrust compliance programs that address the ongoing and evolving developments in this area.
Listen as our authoritative panel analyzes the increased antitrust scrutiny on the use of AI and algorithmic pricing tools and provides guidance on advising clients to take proactive measures to navigate the compliance risks of using these tools.
I. Overview: antitrust issues raised by AI and algorithmic pricing tools
II. Recent antitrust cases, agency Statements of Interest, and agency enforcement actions
III. Legislative proposals
IV. Practical takeaways
The panel will address these and other key considerations:
- How are algorithmic pricing and AI being used by businesses and what are the potential antitrust concerns surrounding the use of these tools?
- What recent legislative and regulatory actions have occurred to address the prevalence and potential anticompetitive nature of pricing algorithms?
- What lessons do recent antitrust cases and agency Statements of Interest provide regarding algorithmic collusion and the potential for antitrust violations?
- What are key compliance considerations when advising clients on antitrust compliance programs that address potential antitrust concerns involving AI, algorithms, and information exchange activity?
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