Agency reiterates that software and AI do not change the rules against collusion.

1. The DOJ’s core message is that competitors must compete; software and artificial intelligence (AI) cannot “launder” collusion, and the medium does not change antitrust rules. 
3. The Agency’s Antitrust Division is balancing support for the American AI industry with vigilant antitrust enforcement.  
5. “The tools change. The rule against collusion does not. And when the evidence shows that competitors used those tools to stop competing, [DOJ] will act,” the DOJ said.

The Big Picture 

The U.S. Department of Justice (DOJ) is shining a light on its enforcement stance on the use of software, artificial intelligence (AI) and algorithmic tools in setting prices. In recent remarks at the Antitrust West Coast Conference, DOJ Antitrust Division’s Acting Deputy Assistant Attorney General for Criminal Enforcement Daniel Glad said that certain pricing practices may not only trigger civil liability but could now also be prosecuted as criminal antitrust violations.

This position reflects the DOJ’s stated view that algorithmic coordination can function just like traditional price-fixing and, as Glad said, is not “beyond the reach of criminal antitrust enforcement.” Glad said that the line is crossed when competitors are sharing non-public sensitive data in ways that reduce competition -- and, as AI tools advance, companies remain responsible for how those tools are used.  

DOJ: Three Pressing Questions

Noting that he was neither “previewing a charging theory” nor “making doctrinal law from [the] podium,” Glad shared three questions that companies should be thinking about with regard to large language model (LLM)-generated pricing: 

1. What is the agreement [between competitors]? If competing firms know their confidential inputs will influence model outputs used by other competitors, companies may have to answer why it is not “anticompetitive coordination;” 
2. Where does the intent reside? Glad shared that “[i]ntent depends on what you knew and how you acted on that knowledge—not on who wrote the code. If you led the enterprise, the question is not whether a person or a tool carried out the scheme, but whether you knowingly used a system to do indirectly what the law forbids you from doing directly;” and
3. Does the per se rule apply? Glad noted that DOJ’s “posture on the criminal side is simple: The classification does not change because the software is newer. The classification tracks the conduct. Where competitors have agreed — through architecture, through information sharing or through follow-the-algorithm understandings — to eliminate competition among themselves, the per se rule applies.”

Compliance is Key

While courts across the country sort algorithmic hub and spoke theories, Glad left his audience with some practical takeaways. In November 2024, the Antitrust Division updated its “Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations” to include risk-assessment questions specifically directed at artificial intelligence and algorithmic tools. These questions examine whether a company’s risk assessment accounts for its use of emerging technologies—whether compliance personnel are involved in the deployment and what steps are being taken to mitigate risk. Glad said that the questions contained in the risk assessment are the “questions to answer on your own before a grand jury subpoena compels you.” 

Glad emphasized the following practical compliance takeaways:  

• Compliance must be involved at the beginning of the process. “Compliance cannot be an exhibit prepared for prosecutors after the fact. It must function before the misconduct occurs. That is especially true in high-risk areas;” 
• Companies must understand their algorithmic tools. “The model did it” is not compliance; and
• “If your company is deploying AI or algorithmic tools in competitively sensitive areas, then antitrust review cannot be ceremonial. It must be real.” 

Glad left the audience with one final thought regarding compliance: “[t]he Antitrust Division charges individuals. The sentences in our cases are served by people. A corporate fine is paid by the shareholders. A sentence of imprisonment is not.” 

This warning underscores the importance of compliance measures and careful evaluation of the tools used in business operations. Working with experienced antitrust counsel when making operational decisions regarding the use of software and algorithms is key to ensure ongoing legal compliance.

NAA’s Legal Advocacy 

The National Apartment Association (NAA), alongside other national real estate organizations, recently submitted comments to the DOJ and Federal Trade Commission’s (FTC) public inquiry for input on potential new guidance for collaboration among competitors, calling for updated, practical guidance on competitor collaborations, particularly around data sharing and technology tools used in rental housing operations.  

The letter highlighted that litigation and inconsistent enforcement related to pricing software and data sharing have created operational and legal uncertainty for rental housing providers. This uncertainty can divert resources away from serving residents and limit the ability to leverage data in pro-competitive ways to improve affordability and operations.