| David O. Fisher
Section 1 of the Sherman Act, Digital Technology, Collusion
AAI Senior Counsel David O. Fisher has published a commentary drawing insights from an analysis of recent Section 1 cases involving allegations of algorithmic collusion.
Fisher argues that courts in algorithmic collusion cases can rely on existing antitrust tools to protect the competitive process by ensuring that AI is not used in ways that deprive the marketplace of independent centers of economic decisionmaking. Recent cases involving allegations of algorithmic price fixing show us that protecting competition in the era of AI means revisiting traditional assumptions about what tacit agreements look like and how tacit collusion may be addressed. Courts evaluating allegations of algorithmic collusion should focus functionally on whether the challenged conduct interferes with individual firms’ pursuit of their own independent self-interests. The threat posed by algorithimic collusion should prompt us to revisit our assumptions about the difficulty of crafting legal remedies to combat oligopoly pricing. AI-powered oligopoly pricing should be treated as a tacit price-fixing agreement when it has collusive effects and is capable of being enjoined.
Read the commentary: AAI Commentary on Algorithmic Pricing
