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DOJ says algorithmic pricing tools can still trigger criminal antitrust liability

Published
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12

Why it matters

The Department of Justice's Antitrust Division is signaling criminal enforcement risk for companies deploying shared pricing software, algorithmic pricing tools, or AI-driven revenue management systems to coordinate prices with competitors. At the Antitrust West Coast Conference, Acting Deputy Assistant Attorney General Daniel Glad stated that algorithmic conduct falls within criminal antitrust enforcement reach and that software "cannot launder collusion." The warning builds on prior civil actions and statements of interest involving hotel and rental-pricing algorithms, including RealPage litigation and DOJ/FTC filings against Caesars and other hotel operators. The legal theory focuses on whether competitors knowingly shared sensitive, non-public data or used a common algorithm with an understanding that it would generate pricing recommendations they would collectively follow.

The DOJ has not announced specific criminal investigations or charges tied to algorithmic pricing. The scope of conduct that triggers criminal liability—as opposed to civil enforcement—remains subject to case-by-case factual development, particularly around what constitutes sufficient evidence of "agreement" among competitors versus independent algorithm use.

Attorneys representing companies in hospitality, car rental, procurement, bidding, and salary-setting markets should treat this as a direct warning. The DOJ is explicitly rejecting the premise that algorithmic systems reduce antitrust exposure. Instead, federal enforcers view pricing software as creating documentary evidence—logs, timestamps, data-sharing records—that can establish intent and coordination more readily than traditional collusion. Companies currently using shared pricing platforms or considering their adoption should conduct compliance reviews focused on data governance, algorithm architecture, and competitor information flows.

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