INTRODUCTION Contributed by: Mark Rosman, Proskauer
by a virtual reality involving a program designed to raise prices and maximise profits? While it would seem reasonable to assume that some evidence of a meeting of the minds or the human hand would still be needed to prove a price-fixing agreement among competitors, the United States government seems to be leaning otherwise. For example, the US Department of Justice in recent years has taken the view that use of such algorithms, under certain circum - stances, can be tantamount to collusion and a violation per se of antitrust laws (Department of Justice, Statement of Interest of the United States, In re: RealPage, Rental Software Anti - trust Litigation, Case No 3:23-MD-3071 (15 November 2023)). Similarly, as a past Chairperson of the US Feder - al Trade Commission foreshadowed a few years ago, “Everywhere the word algorithm appears, please insert the words a guy named Bob. Is it OK for a guy named Bob to collect confidential pricing strategy information from all the partici - pants in a market, and then tell everybody how they should price? If it isn’t OK for a guy named Bob to do it, then it probably isn’t OK for an algorithm to do it either” (Maureen K. Ohlhaus - en, Acting Chairman, US Fed. Trade Comm’n, Should We Fear the Things that Go Beep in the Night? Some Initial Thoughts on the Intersection of Antitrust Law and Algorithmic Pricing (23 May 2017)). The rapid developments in and increasingly widespread use of artificial intelligence also will present questions and challenges related to cartel conduct and enforcement. Depending on how business train and use AI, could it become a way to facilitate cartel behaviours? To what extent will business people rely on AI to advise or coach them through delicate competitor com -
munication? Conversely, will regulators be able to use AI to help detect or monitor suspicious pricing patterns or cartel conduct? We may not know the answers to these and related ques- tions for some time, but practitioners around the globe will need to start considering how clients and regulators will make use of this extraordinary technology. Information sharing With an increased focus on compliance training, business people around the globe are increas - ingly aware of the risks of engaging in cartel behaviours. Nevertheless, grey-area conduct involving sharing of confidential and competi - tively sensitive commercial information, related to pricing, margins, costs, and output, for exam - ple, appears to be flourishing. In many jurisdic - tions, because it can have the effect of reduc - ing competitive uncertainties to the customer’s disadvantage, competition regimes and regula - tors view sharing of this type of information as a potential cartel offence. At the same time, companies have many legiti - mate reasons to exchange certain types of information, especially when facing common obstacles such as supply shortages or regula - tory concerns. Thus, knowing the laws and the current enforcement landscape in key jurisdic - tions is critical for business. Environmental, social and governance cartels Along these lines of pro-competitive reasons for information sharing, many jurisdictions are adopting environmental, social and governance (ESG) mandates or policies which have in turn brought businesses together for industry discus - sion. It is important to understand, by jurisdic - tion, if there is any guidance issued by authorities about avoiding cartel behaviour while discussing adoption of ESG standards. To comply with ESG
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