antitrust enforcement

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The Department of Justice and eight state attorneys general filed a civil antitrust lawsuit in August against RealPage Inc. – a Texas-based software company that provides property management software – and several landlords using its software. This case adds to the growing number of antitrust cases targeting algorithmic pricing tools, and is another example of federal regulators taking a tough stance on new AI technologies.

The Federal Trade Commission (“FTC”) has announced a final rulemaking on a unanimous vote that will expand the reporting requirements for mergers and acquisitions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). The new reporting requirements will go into effect after the new year in mid-January 2025. No changes will be made to the scope of transactions that are subject to HSR reporting.

Earlier this month, President Biden announced the formation of a “Strike Force on Unfair and Illegal Pricing.” This strike force will be an interagency group co-chaired by the FTC and DOJ. President Biden stated the group will focus on industries including “prescription drugs, health care, food and grocery, housing, [and] financial services.” While the exact makeup of the strike force is not clear, it has been reported that FTC Chair Lina Khan and Jonathan Kanter, Assistant Attorney General in the DOJ’s Antitrust Division, will co-chair it. 

Pricing algorithms are nothing new. They are, generally speaking, computer programs intended to help sellers optimize prices in real time, or close to it. These programs can use data on demand, costs, or even competitors’ prices to “learn” to set the prices of products. What is new is the proliferation of these programs across industries and the emergence of artificial intelligence-driven pricing algorithms. 

On December 18, 2023, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the 2023 Merger Guidelines. Following a 60-day public comment period that solicited over 30,000 comments from a variety of stakeholders, the finalized guidelines take a somewhat softer approach than the draft guidelines…

While speaking at the annual conference of the National Advertising Division on September 19, 2023, the Federal Trade Commission (“FTC”) announced a generative AI (“AI”) policy that is consistent with Chairwoman Khan’s focus on the perceived harms to consumers from large technology companies, fully embracing a plan to regulate AI swiftly, aggressively, and proactively. 

The agency began its remarks on AI by observing that its purported policy decision to allow technology companies to self-regulate during the “Web 2.0” era was a mistake. Self-regulation, according to the FTC, was a failure that ultimately resulted in the collection of too much power and too much data by a handful of large technology companies. 

 As this year’s roundtable of enforcers demonstrated, big business is probably antitrust enforcers’ greatest fear. Spring in Washington means Cherry blossoms and antitrust. And last week, 3,700 antitrust lawyers and government officials from around the globe descended on Washington to visit the Cherry blossoms and discuss how they need more government intervention to make the economy work for everybody and need to bring ever more “plausible” cases in order to nudge and push the courts along.

The Supreme Court heard oral argument last week in cases that will have extensive implications for online platforms, and, more broadly, for internet speech across the board. Gonzalez v. Google, in particular, may result in a first-of-its-kind clarification of the scope of 47 U.S.C. § 230.