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 October 18, 2023, Amazon filed a motion to dismiss the Federal Trade Commission’s lawsuit alleging that the company deceived millions of consumers into nonconsensual Prime membership enrollment and thwarted members’ attempts to cancel their Prime subscriptions. In a heavily redacted complaint filed on June 21, 2023 in the Western District of Washington, the FTC charges Amazon with using “manipulative, coercive, or deceptive user-interface designs known as ‘dark patterns’ to trick consumers into enrolling in automatically-renewing Prime subscriptions,” in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act (“ROSCA”). The FTC describes the Amazon platform as bombarding customers with options to sign up for Prime and obscuring options to shop without Prime, making non-Prime alternatives difficult for consumers to locate. In some cases, the FTC alleges, the button to complete a transaction did not clearly state the shopper was also agreeing to enroll in a recurring Prime subscription.

On January 18, 2022, Microsoft’s acquisition of Activision, one of the world’s most-valuable gaming companies, was announced. In April 2023, the United Kingdom’s Competition and Markets Authority (CMA) blocked the deal on concerns that the deal could “alter the future of the fast-growing cloud gaming market, leading to reduced innovation and less choice for UK gamers over the years,” a decision that Microsoft appealed to a Competition Appeal Tribunal. A few months later, in July 2023, as previously reported in Minding Your Business, the FTC’s challenge to the deal in the United States fell short, leaving the UK as the only competition authority preventing the closing of the deal.

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. 

In the latest of a string of losses for antitrust enforcers, the Northern District of California resoundingly denied the FTC’s bid to enjoin the Microsoft-Activision merger, allowing the deal to proceed a week in advance of its upcoming merger termination date. In a case that tested the bounds of antitrust law in vertical integration deals, Presiding Judge Jacqueline Scott Corley found “the record evidence points to more consumer access,” rather than showing signs of reduced competition. Federal Trade Commission v. Microsoft Corporation, et al. 

In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.

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. 

Antitrust and tech is in the legal news almost daily, and often multiple times a day.  Here are a few recent developments with notable implications that may have flown under the radar: 1) renewed focus on gig economy issues; 2) potential enforcement efforts regarding director overlaps; and 3) challenges to MFN pricing.