Is the Price Right? Antitrust Enforcers Focus on Pricing Practices Beyond the Fix

The third rail of antitrust has always been price setting. Price fixing is the classic per se, illegal antitrust violation. The current Administration’s antitrust enforcers have broader ambitions, however. They are investigating—and bringing enforcement actions against—more pedestrian industry pricing practices. Both the Antitrust Division and the FTC have withdrawn guidance on how to share pricing information legally, and the DOJ has asserted in courts that there are no safe harbors for information sharing that impacts pricing. Pricing algorithms and the use of AI are top of mind. Cases will follow. The FTC is engaged in an industry-wide investigation of so-called surveillance pricing—the use of advanced technologies to set targeted prices to individuals. The FTC commissioners are advocating for the return of the perennial antitrust loser, the Robinson Patman Act, which prohibits price discrimination. Both upstream and downstream industry pricing practices are being scrutinized through the lens of fairness rather than classic antitrust efficiency analysis.

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