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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.

Author

Creighton Macy 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 Department of Justice Antitrust Division, working as a senior advisor to the acting 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.

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.