DOJ Stakes Out Position That Pricing Algorithms Can Be Per Se Illegal in RealPage Case
On November 15, 2023, the U.S. Department of Justice Antitrust Division (“DOJ”) filed a statement of interest (the “Statement”) in In re: Realpage, Rental Software Antitrust Litigation (No. II) staking out its position that “[a]lgorithms are the new frontier” of price fixing, one that “poses an even greater anticompetitive threat than the last.” In particular, DOJ argues that “competitors’ joint use of common algorithms can remove independent decision making” and that “[a]lgorithmic price fixing must therefore be subject to the same condemnation as other price-fixing schemes.” Although it remains to be seen if U.S. courts will agree, the Statement puts private parties on notice that in certain circumstances, described further in this memo, DOJ may consider bringing its own Sherman Act Section 1 claims against parties utilizing third-party price-setting algorithms.