INTRODUCTION Contributed by: Mark Rosman, Proskauer
societal upheaval. This leads to the expanded section at the end of this guide outlining trends, which harks back to the theme of this introduc - tion: change. Trends As Yoda explained in the underrated Star Wars Episode 1, The Phantom Menace, “Fear is the path to the dark side”. Similarly, change, like the trends below, breeds uncertainty. Uncertainty leads to fear and unease. Fear and unease can lead to cartel behaviour. Questions arise: Will we miss our quarterly sales targets again? Will customers accept another price increase if our costs continue to go up? How can we be sure that our competitors will pass on a cost increase and not take our market share? Under such circumstances and pressure, and as has happened many times in the past, managers are tempted to ask the sales team to find out what the competitors are doing. The salespeople may in turn reach out to their trusted counterparts or friends at the competing companies to find out for sure what the competitors intend to do. And so it goes. Crisis cartels The 9/11 crisis brought the airlines together, where they communicated and widely adopted fuel and security surcharges in response to the crisis. This conduct ultimately resulted in global government and private enforcement with bil - lions of dollars in fines and jail time in, and extra - dition to, the United States for some executives. Similarly, the volatility resulting from the 2008 financial crisis caused banks to come togeth - er and collude on LIBOR, foreign currency exchanges, and other financial products – again, followed by aggressive cartel enforcement, mas - sive fines and follow-on damages, and jail time.
With the COVID-19 pandemic barely in the rear- view mirror, recent inflationary pressures, and now newly introduced tariffs, one can only ask: How will businesses cope? Are compliance pro - grammes up to the task? And what are various jurisdictions doing to bust up the next big inter - national or domestic cartel? Recently, there have been news reports about “tariff surcharges”. Of course, a surcharge unilat - erally derived is not a violation of law. But when an industry adopts a uniform surcharge, regula - tors sit up and take note. Roger Alford, Principal Deputy Assistant Attor - ney General at the US Department of Justice’s Antitrust Division, in response to a climate of tariff setting, recently discussed the need for authorities to remain vigilant for signs of collu - sion. He warned that the imposition of trade bar - riers could reduce foreign competition which in turn could lead to greater market concentration and less competition. This in turn could increase the risk of collusion on pricing or output. In this example, the DOJ is putting companies on notice to use caution during these turbulent economic times (Khushita Vasant, US DOJ’s Alford Warns of Risk of Anticompetitive Behavior in Response to Tariffs, MLEX (4 April 2025)). Artificial intelligence and pricing algorithms Over the past decade, certain kinds of technolo - gy have developed as an industry-wide tool that can help businesses manage inventory and set pricing based on current, or recent, supply and demand data. With widespread industry adop - tion of such a common algorithm, regulators have begun to view this technology with deep suspicion. Can a pricing algorithm function at the centre in a new version of the classic hub- and-spoke conspiracy? Are the smoke-filled rooms of the cartels of yesteryear being replaced
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