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 submitted a Statement of Interest on behalf of the United States in the legal matter of Cornish-Adebiyi v. Caesars Entertainment, 1:23-CV-02536 (D.N.J. Mar. 28, 2024).

Within this statement, the agencies expressed their disagreement with two legal assertions made by the defendants in the Cornish-Adebiyi case in their motion to dismiss. Firstly, the agencies contested the notion that proof of communications between competitors is a mandatory requirement to establish the existence of an agreement under Section 1. While such communications can serve as compelling evidence, the agencies argued that actions alone, such as tacit agreements or collaborations facilitated by a central intermediary, can also substantiate Section 1 claims.

Furthermore, in response to the defendants’ argument that non-binding pricing recommendations do not amount to per se unlawful price fixing, the agencies countered that agreements concerning the initial setting of prices fall within the scope of per se illegal price fixing, irrespective of how frequently the agreement is implemented…

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