DOJ Antitrust Division Continues Interest in Algorithmic Pricing

Under the leadership of newly confirmed Assistant Attorney General Gail Slater, the U.S. Department of Justice, Antitrust Division (DOJ) submitted a Statement of Interest last week in a private class action that alleges antitrust violations relating to algorithmic pricing software. The case, In re Multiplan Health Insurance Provider Litigation, alleges that healthcare payors coordinated through MultiPlan to set prices using a common formula and a database of commingled pricing data. DOJ previously has filed Statements of Interest in algorithmic pricing cases involving hotel rooms and apartment rentals. This Statement of Interest signals that DOJ will continue to scrutinize algorithmic pricing under the new administration.

DOJ’s Statement of Interest argues two primary points: (1) using a pricing algorithm to set benchmark or “starting point” prices may constitute concerted action under Section 1 of the Sherman Act regardless of differences in final pricing, and (2) exchanging pricing information through an algorithm may violate Section 1 of the Sherman Act in the same way as direct information sharing.

First, DOJ argues that, even though competitors may not end up at exactly the same price, competitor “coordination in the approaches to determining prices” nevertheless may be concerted action. While DOJ’s Statement of Interest focuses on the narrow question of whether simply using the same pricing algorithm may constitute parallel conduct, it repeatedly analogizes an agreement to use a common pricing algorithm to price fixing. Application of Section 1 to “agreement on ‘the formula underlying price policies’” is not new, DOJ argues, but instead dates back to the Supreme Court’s seminal price-fixing opinion in Socony-Vacuum.

Second, DOJ argues that, just as agreements among competitors to directly exchange competitively sensitive information may violate Section 1, so too with information exchanges through a third party — even if the third party is an algorithm rather than a human. As DOJ puts it, “sharing information through an algorithm provider can create the same anticompetitive effects as a direct exchange between competitors[.]”

According to DOJ, longstanding antitrust principles regarding pricing formulas and information exchanges apply with equal force to new technologies. DOJ’s Statement of Interest makes clear that, despite the Trump administration’s generally friendlier posture towards AI, new DOJ leadership will continue the previous administration’s aggressive views towards the antitrust implications of algorithmic pricing. Companies should continue to use the same caution in adopting algorithmic pricing strategies as they would when implementing more traditional pricing strategies.

For questions about antitrust enforcement or compliance, contact the authors or any of their colleagues in Arnold & Porter’s Antitrust/Competition or White Collar Defense & Investigations practice groups.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.