Algorithmic Software Facilitated Price Fixing with Jonathan Rubin
Concepts: Antitrust, Price Fixing, Algorithmic pricing, Algorithmic bias, Sherman Act, Anticompetitive
Everyone knows that price fixing is against the law, chiefly Section 1 of the federal Sherman Antitrust Act of 1890.
Competitors may not collude to keep prices where they want them, but there are relatively new price-calculation tools that some companies maintain takes them out of the equation. With these tools, shared across an industry, they do not have to directly swap private information with competitors. Instead, they claim, they feed their data to a third-party which uses algorithms to come up with prices. The subject has been getting a lot of attention as cases mount against a company called RealPage, a firm that provides shared pricing services for landlords. The company faces dozens of suits in multidistrict litigation and has also captured the attention of federal antitrust law enforcers. Several other companies face litigation as well.
As our guest recently wrote: “When pricing algorithms are used by individual firms, such as airlines, e-commerce platforms, rideshare and room-share companies, stock traders, and others, there are unlikely to be anti-competitive consequences. It is when market competitors avail themselves of the same algorithmic program or service that the specter of unlawful collusion arises.” That risk increases as markets become more concentrated.
He is Jonathan Rubin, Partner and Co-Founder of MoginRubin LLP, a widely recognized competition law attorney, economist, and commentator who has presented at antitrust conferences in the United States and Europe, testified before several congressional committee hearings, and before the Directorate General for Competition of the European Commission.
“The fact that these services employ an algorithm is not central to what's going on in this scenario,” he told me, “because what's important is the conduct of the businesspeople involved.”
Listen to my interview with Jonathan Rubin as we discuss what algorithmic or software-facilitated pricing is, what the law says about price collusion, how this new pricing mechanism violates the law, and recent developments in litigation.
I hope you enjoy the conversation! If so, give us a rating!
This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcaselegal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.
If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.
Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
LinkedIn
Disclosure: I provide content services to MoginRubin in my role at Critical Legal Content. Also, Jonathan is plaintiffs' counsel in a pending software-enabled pricing case. Check out the MoginRubin Blog. --Tom
As a litigator, Jonathan has led trial teams in major antitrust cases in courts throughout the country. As a thought-leader in competition law, he has published in influential academic journals and has spoken to numerous professional groups, including the Directorate General for Competition of the European Commission, the Antitrust Section of the American Bar Association, the University of Wisconsin, and the American Antitrust Institute. He also has made several appearances before congressional committees.
Education:
University of Copenhagen, Ph.D. Economics
Florida Atlantic University, M.A. Economics
University of Florida, Levin College of Law, J.D.
University of Wisconsin at Madison, B.S. Biological Sciences