U.S. Competition Agencies File Statement of Interest in Algorithmic Pricing Case

By:  John Playforth & August Gweon (Covington & Burling)

On March 28, 2024, the U.S. Department of Justice and the Federal Trade Commission jointly filed a Statement of Interest on behalf of the United States in the case of Cornish-Adebiyi v. Caesars Entertainment, 1:23-CV-02536 (D.N.J. Mar. 28, 2024).

In this Statement, the agencies contest two legal arguments presented by the Cornish-Adebiyi defendants in their motion to dismiss. Firstly, they assert that while communications between competitors can provide strong evidence of an agreement, there exists no strict requirement mandating proof of such communications to establish the existence of an agreement under Section 1. According to the agencies, Section 1 claims may also be substantiated solely by actions, such as in cases of tacit agreements, or agreements facilitated by communications between competitors and a central intermediary, as in “hub-and-spoke” conspiracies.

Moreover, in response to the defendants’ argument that alleged conduct doesn’t amount to per se unlawful price fixing if pricing recommendations are non-binding, the agencies argue that per se illegal price fixing encompasses agreements concerning the “starting point of prices,” irrespective of the frequency with which such agreements are adhered to.

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