USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
The DOJ has highlighted several factors to be considered in assessing whether an information exchange among competitors tends to harm competition. These factors include the sensitiv - ity of the information exchanged, granularity of the information exchanged, public availability of the information exchanged, contemporariness of information exchanged and structure of the industry involved. Recently, a federal court considering the use of an algorithmic pricing tool in Duffy v Yardi Systems, Inc. applied per se treatment where plaintiffs alleged that defendants joined a con - spiracy to share detailed, competitively sensi - tive, non-public information which would be used to establish supracompetitive rental rates in the multifamily housing market. The DOJ has also argued in several statements of inter - est that algorithmic price-fixing is per se illegal. Moving forward, companies and counsel should anticipate the DOJ to apply heavy scrutiny to exchanges of competitively sensitive information between separate entities. 7.2 Use of AI and Algorithms The Antitrust Division has shifted significant attention to information-sharing cases involv - ing the use of AI and algorithms in recent years, while casting the conduct under a traditional price-fixing theory. In 2024, the Division opened a criminal investigation into a software company that was alleged to use algorithmic pricing to fix rental prices among competitor landlords, and other large apartment owners and managers using the company’s software. While the Division ultimately decided to pursue only a civil lawsuit, opening a criminal investigation signals they are seeing information sharing and algorithmic pric - ing as an area subject to criminal enforcement.
Similarly, the DOJ statements of interest in oth - er algorithmic pricing cases involving the hotel and residential rental industries state that certain types of indirect information sharing through an algorithm, software or AI tool should be con - demned as per se violations of Section 1 of the Sherman Act. Such statements further demon - strate that the DOJ is closely monitoring tools that permit sharing information through AI or algorithms. 7.3 Monopolisation as a Cartel Offence Monopolisation has traditionally not been viewed as a cartel offence in the United States. Under Section 2 of the Sherman Act, monopo - lisation, attempted monopolisation and con - spiracy to monopolise, are prohibited activities. Monopolisation requires (i) monopoly power in the relevant market and (ii) the wilful acquisition or maintenance of that power as distinguished from growth or development resulting from a superior product, business acumen, or historic accident. Attempted monopolisation requires (i) anti-competitive conduct, (ii) a specific intent to monopolise and (iii) a dangerous probability of achieving monopoly power. Conspiracy to monopolise (similar to a Section 1 conspiracy claim) requires (i) a combination or conspiracy, (ii) an overt act furthering the conspiracy and (iii) specific intent to monopolise. 7.4 Focus on Certain Industries/Sectors Healthcare, public procurement, algorithmic pricing and labour market infringements have received significant scrutiny in recent years and are likely to continue to receive scrutiny moving forward. Biden administration enforcers were highly active in the healthcare space, targeting anti- competitive practices in the healthcare and pharmaceutical industries. The Trump admin -
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