“Old Crime, New Code” – DOJ Outlines Its Views On When Software And AI Can Facilitate Collusion

Last week at a conference chaired by the head of Axinn’s West Coast antitrust practice, Antitrust Division Criminal Deputy Daniel Glad outlined the distinction between benign pricing software and “algorithmic collusion,” and reiterated that policing algorithmic collusion is a continued enforcement priority. He emphasized, however, that while algorithms represent a potentially new mechanism through which collusion can occur, the “mechanics of collusion” via algorithms “are more conventional than they look on first inspection” and are subject to the same legal analysis and evidentiary burdens as traditional cartels.

Glad argued that algorithmic conduct is not “beyond the reach of criminal antitrust enforcement” when prosecutors can prove beyond a reasonable doubt that competitors agreed to fix prices by knowingly substituting “shared non-public competitive information for the independent decision-making that the antitrust laws require of competitors,” whether “through architecture,