Mandatory vs. Suggested Pricing: Algorithmic Price Setting And The Sherman Act

In January, as the Biden Administration drew to a close, the U.S. Department of Justice ("DOJ") and eight state attorneys general amended their antitrust lawsuit against software maker RealPage, Inc. ("RealPage"). The lawsuit alleges that RealPage amasses nonpublic, competitively sensitive data from competing landlords through its pricing algorithms and then uses this data in generating pricing recommendations that the landlords are expected to follow. The amendment adds as defendants six of the nation's largest landlords, alleging that they participated in an unlawful scheme not only through their use of RealPage's algorithms, but also through direct coordination and information-sharing. Two additional state plaintiffs have joined the suit as well.