New Hart-Scott-Rodino premerger notification rules, which took effect in February, require that companies now provide more information than ever before about their prospective mergers. Meanwhile, both federal and state antitrust enforcers continue to step up scrutiny of data-related antitrust harms such as information sharing, monopolization, and price coordination, and private litigants are also filing claims. Data has long been used by companies to benchmark performance metrics, from pricing to inventory levels, and to manage revenue. But as data volume has increased, so too has the risk of violating antitrust laws through higher levels of interconnection. Big data could facilitate price coordination, potentially rising to the level of price fixing, and could thus entrench the market power of companies that have amassed data critical to the ability to compete.
Companies that own large sets of data, use large sets of data, or disseminate data to third parties should heed the developing antitrust laws. As demonstrated by the Department of Justice’s (DOJ) late-2024 lawsuit against landlords for alleged pricing schemes that harmed renters, antitrust enforcers are looking closely at the connections between companies, particularly with regard to the use of artificial intelligence and its impact on coordination and communication.
The late-2024 withdrawal of DOJ and Federal Trade Commission guidance, which provided safe harbors and steps to avoid antitrust disputes, heightens the challenges for companies seeking to mitigate risks through robust compliance programs.
Not all hope is lost, however. By understanding not only the facts in recent litigation but also their own information, companies can consider whether their use, manipulation, and exchange of data fall within areas of concern, safe areas, or gray areas. Companies need to make sure they understand where their data comes from and must document that source. For example, if the information is publicly available, companies can keep copies with dates so if questioned years later, they can show where the information originated. To avoid other privacy concerns, companies should review their information regularly to ensure they are keeping only what is actually necessary.
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