FTC and DOJ File Statement of Interest in Hotel Room Algorithmic Price-Fixing Case

The Federal Trade Commission joined by the Justice Department’s Antitrust Division filed a statement of interest with the District of New Jersey in the case of Cornish-Adebiyi v. Caesars Entertainment, which explains that hotels cannot collude on room pricing and cannot use an algorithm to engage in practices that would be illegal if done by a real person.

Companies across the economy are increasingly using algorithms to determine their prices. When a small group of algorithm providers can influence a major segment of a market, competitors are better able to use the algorithm provider to facilitate collusion. This risk is even greater as markets have become more concentrated across a wide range of industries. Algorithms that recommend prices to numerous competing hotels make it harder for travelers to comparison-shop for the best rate.

In their statement, the agencies highlight two key aspects of competition law. First, plaintiffs do not need to identify direct communications between competitors to allege an agreement under Section 1 of the Sherman Act, particularly when they allege that an algorithm provider that works with the competitors is acting in concert with them. Competitors cannot lawfully cooperate to set their prices, whether via their staff or an algorithm, even if the competitors never communicate with each other directly. Second, an agreement to use shared pricing recommendations, list prices or pricing algorithms is still unlawful even when co-conspirators retain some pricing discretion. Setting or recommending initial starting prices can still violate the antitrust laws even if those are not the prices that consumers ultimately pay.

The agencies have a strong interest in protecting consumers from algorithmic collusion, and their statement provides guidance to any firm that uses an algorithm to set prices. The agencies recently filed a statement of interest in an algorithmic price-fixing case in the residential housing market, and the Justice Department’s Antitrust Division filed a statement of interest and memorandum of law in another real estate algorithmic price-fixing case last year. The division also has an ongoing case alleging that a middleman orchestrated a yearslong conspiracy to share pricing and other sensitive information among meat processing competitors.

The Commission vote approving the filing of the statement of interest was 3-0-1, with Commissioner Holyoak not participating.