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Antitrust Compliance and Pricing Algorithms

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Antitrust enforcement officials in the US and EU are watching developments surrounding the use of pricing algorithms and artificial intelligence. One area in particular that has drawn attention is the emerging use for AI to combine data and analytics to more accurately price products.

Of course, competitive intelligence gathering is a fact of life in business, and many companies have compliance policies to deal with antitrust risks that can arise when handling such information. However, what is (somewhat) new is that pricing algorithms and AI can further automate and accelerate the process through which companies set prices and gather information. But do these new technologies create unique antitrust risks?

The short answer is no. Luckily, companies don’t need to look too far to see how antitrust authorities have confronted these issues. Antitrust enforcers are using time-tested approaches to questions concerning very new technology. For corporate compliance teams, that means that the safeguards are similar to those you would encounter in other familiar contexts.

This article explores real-world examples and lays out key corporate compliance considerations that are likely to arise when using these technologies. We also look at how enforcers are evaluating the issues surrounding pricing algorithms and the importance they have placed on applying traditional frameworks in analyzing these emerging technologies.

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Article first published in Bloomberg Law, December 2019.

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Creighton Macy is the Chair of Baker McKenzie's North America Antitrust & Competition Practice Group. Creighton is recognized as a leading global antitrust practitioner. Creighton has extensive experience representing clients in a wide variety of antitrust matters, including mergers and acquisitions, investigations by the United States Department of Justice and the Federal Trade Commission, private litigation, and counselling on issues such as antitrust compliance. Before joining the Firm, Creighton served as Chief of Staff and Senior Counsel in the DOJ Antitrust Division, working as a senior advisor to the Assistant Attorney General on civil and criminal antitrust enforcement and policy matters, as well as budget and personnel issues. During Creighton's time at the DOJ, the Antitrust Division undertook an unprecedented volume of high-profile civil and criminal matters. Creighton began his career as a Trial Attorney in the Litigation III and Transportation, Energy, and Agriculture sections of the Antitrust Division, working on a number of notable merger and civil non-merger investigations and cases. Before rejoining the Antitrust Division as its Chief of Staff, he was a member of another global law firm's antitrust practice, where he advised clients on a wide range of US and international antitrust issues. Creighton is consistently recognized globally for his market-leading antitrust practice with respect to high-stakes transactions, investigations, and compliance and counseling work. For example, clients have noted that Creighton “shines above the rest’ due to his first-rate cartel and merger control-related practice.’” He also regularly speaks and publishes articles relating to a variety of antitrust issues, and has been recognized many times for his contributions and thought-leadership on these issues. Creighton is currently Co-Chair of the American Bar Association Antitrust Law Section’s Young Lawyers Task Force. In previous roles, he served as Reporter of the Presidential Transition Task Force, as well as Chair of the Trade, Sports, and Professional Associations Committee. He is highly involved in mentoring programs, including with the Antitrust Law Section, as well as Marquette University Law School, where he previously served as the DC Representative of the Alumni Board. Creighton graduated from Marquette University, where he was an NCAA Division I Academic All-American tennis player. During his time at Marquette, he was awarded the Athletic Department’s Cura Personalis award by his peers, as well as several leadership awards. More recently, Creighton was named the Athletic Department’s Young Alumnus of the Year Award.

Author

Dan is an associate in Baker McKenzie's Global Antitrust & Competition Practice Group in Washington, DC. He advises clients on all aspects of antitrust law before the Department of Justice, Federal Trade Commission, US courts, and foreign competition authorities. Prior to joining the Firm, Dan was an associate in the antitrust group of another large international law firm. Dan is an active member of the ABA Section of Antitrust Law and currently serving as the Vice Chair for the Distribution and Franchising Committee. Dan also maintains an active pro bono practice with his recent focus being on antitrust issues related to occupational licensing.

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