Agreements And Algorithms Can Add Up To Antitrust Liability

Last week in a hearing before the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights, Assistant Attorney General (AAG) Makan Delrahim announced that the Department of Justice (DOJ) is pursuing criminal charges against competitors who allegedly engaged in a price-fixing scheme facilitated by the use of search algorithms. While he did not reveal further details about the case, AAG Delrahim announced that he expected the investigation to conclude soon.

Algorithms are a series of instructions, frequently iterative, that when followed may solve a problem, and they are commonly written into software to process vast amounts of data and quickly arrive at a solution. Algorithms are frequently used in pricing, where a company may create a process that incorporates data on costs, competitors' prices, and other significant factors to determine pricing. Algorithms are largely used in a procompetitive manner, for example, by enabling a competitor to