As our next presidential election approaches, the U.S. Department of Justice (DOJ), Antitrust Division (Division), Criminal Enforcement Section, headed by Deputy Assistant Attorney General Richard Powers and Director of Criminal Enforcement Marvin Price, indicated that criminal investigations and prosecutions will be on the rise. In recent days, both Powers and Price stated that the Division is committed to investigating price fixing, bid rigging, and market allocation cases in industries that commonly share pricing information for seemingly lawful purposes.
On September 14, 2020, while addressing the Compliance & Ethics Institute, Price advised that information exchange between competitors can lead to unlawful collusion between competitors. Price explained that although “information exchange itself is not a criminal violation,” it can be the way a conspiracy is implemented and effectuated. Additionally, Price said that trade shows and association events breed conversations that amount to competitors “agreeing on prices and rigging prices,” which can violate antitrust laws.
In a similar context, the Division is focusing on algorithmic collusion, where competitors conspire to use common pricing algorithms through intermediaries for the purpose of fixing prices. On September 17, 2020, in a speech at the International Competition Network Annual Conference, Powers warned that “under U.S. law, we could prosecute both the competitors and the intermediary who facilitate such illegal agreement” using pricing algorithms.
Powers further emphasized that the Division’s recently formed Procurement Collusion Task Force is “facilitating an interagency dialogue on the use of data analytics to detect collusion that affects public procurement.” The Task Force will study how artificial intelligence and blockchain technologies can affect competition.
With the current criminal antitrust enforcement landscape changing, individuals and companies should be mindful of DOJ’s heightened scrutiny of competitor information sharing and protect against any unintended consequences thereof by implementing and refining robust compliance programs, which should include management approval and tracking of meetings with competitors, as well as training on the risks associated with using pricing algorithms and similar business tools in the marketplace. The experienced white collar crime attorneys at Dysart Willis Houchin & Hubbard can provide effective legal counsel in the area of antitrust law and government compliance to help charter these waters.