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 the Statement, the agencies express their disagreement with two legal arguments asserted by the Cornish-Adebiyi defendants in their motion to dismiss. First, the agencies argue that, although communications between competitors “can be highly probative of an agreement,” there is “no rule requiring proof of such communications” in order to prove the existence of an agreement for purposes of Section 1. In the agencies’ view, Section 1 claims may also be demonstrated by “actions alone,” as in the case of a tacit agreement, or an agreement facilitated by communications between competitors and a central intermediary, as in the case of a “hub-and-spoke” conspiracy.
Additionally, and in response to the Cornish-Adebiyi defendants’ argument that the alleged conduct does not constitute per se unlawful price fixing if pricing recommendations are non-binding, the agencies argue that per se illegal price fixing includes agreements to fix the “starting point of prices,” regardless of “how often [an agreement] is followed.”
The Statement, filed with the District of New Jersey, follows similar Statements of Interest submitted in the past year by the United States in two other ongoing algorithmic price fixing cases, In re: RealPage, 3:23-MD-03071 (M.D. Tenn. Nov. 15, 2023), and Duffy v. Yardi, 2:23-cv-01391 (W.D. Wash. Mar. 1, 2024). Last December, the district court in RealPage did not accept plaintiffs’ and the agencies’ argument for per se treatment, instead dismissing one of the two complaints and allowing the other to proceed only under a Rule of Reason theory. In re RealPage, Inc., Rental Software Antitrust Litig. (No. II), 3:23-MD-03071, 2023 WL 9004806, at *30 (M.D. Tenn. Dec. 28, 2023).
We will continue to update you on meaningful developments related to algorithmic price fixing here and across our blogs.