USA – NEW YORK Trends and Developments Contributed by: Philip Iovieno, Kristen J. McAhren and Mark Singer, Cadwalader, Wickersham & Taft LLP
evidence. Noting the lack of an existing standard for the latter, the 2nd Circuit deemed it appropriate to rely heavily on the airline’s economic evidence of increased output on a route-by-route basis for that purpose. • Phhhoto, Inc. v Meta Platforms, Inc. f/k/a Face- book, Inc. – In a case involving the anticompetitive effects of algorithms, the 2nd Circuit reversed the lower court’s dismissal of a complaint as untimely because it was brought more than four years after Phhhoto felt the alleged impact of the algorithm. Acknowledging that language in its prior decisions had created some confusion, the 2nd Circuit first clarified that for purposes of tolling the statute of limitations with the fraudulent concealment doc - trine, the lower courts should look to whether the case was brought within four years of when the claim was first discovered, regardless of whether the date of discovery occurred within the usual limitations period. It then held that Meta’s public statements regarding the algorithm – which implied that some technological criteria were more impor - tant than others – were affirmative acts of fraudu - lent concealment which prevented the plaintiff from discovery of its claim. The court emphasised that while the plaintiff may have had reason to believe that Meta’s new algorithm was to blame for its inju - ries long before it filed its complaint, such knowl - edge is distinct from knowledge that the injury was part of an anticompetitive scheme for purposes of bringing an antitrust claim. Proposed revisions to the New York Donnelly Act In 2022, for the first time since the Donnelly Act’s pas - sage over 100 years ago, a major legislative effort was undertaken to revise the law to include prohibitions on
monopoly conduct. The proposed legislation, called the “21st Century Antitrust Act”, would create a pre - sumption of market power for any business with 40% or greater share of a relevant market. It would also authorise private class-action lawsuits, which cur - rently are not permitted under the Donnelly Act. In 2022 and again in 2023, the legislation was approved by the New York Senate, but failed to get necessary approval from the New York Assembly. On 6 June 2025, the New York Senate approved a modi - fied version of the legislation, but to become law it will still need to be approved by the New York Assembly and then New York’s Governor, meaning that enact - ment into law is a lengthy process and far from certain. If enacted, the amendment would dramatically alter the antitrust law landscape in New York, reflecting a departure from the approach to monopolisation offences currently used for purposes of the federal Sherman Act, Section 2 in New York federal courts and elsewhere and necessitating new interpretations and decision precedents. Separately, in June 2025, the New York Assembly and the New York Senate approved legislation which would, among other things, specify that the Donnelly Act prevents residential property owners from using algorithmic pricing systems to set rental prices within New York where the algorithm includes a co-ordina - tion function and can be used among unrelated land - lords. The proposed legislation has received strong support, and the New York Governor has shown sup - port but has yet to enact the legislation as of the time of this article.
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