The full text of this Note may be found here.
30 Fordham Intell. Prop. Media & Ent. L.J. 1259 (2020).
Article by Aleksandra Lamontanaro*
n light of the reality that pricing algorithms allow commercial actors to perform all phases of their price-fixing conspiracies without leaving behind trails of traditional incriminating evidence, the scarcity of algorithmic cartels prosecutions is hardly surprising. Given well-documented evidence that the authorities struggle in their efforts to detect even conventional price-fixing cartels, it is imperative to come up with new tools for detecting algorithmic cartels, which have unprecedented potential to harm consumers if left ignored. This Note investigates algorithmic capabilities to collude, as well as legal and technical challenges that governmental authorities face in confronting such collusion. This Note then introduces two proposals to improve the detection of algorithmic cartels: cartel screening and a whistleblower bounty program. The Note argues that, although the optimal solution is to implement the whistleblower bounty program and cartel screening together, it would be more effective and efficient to launch the former before the latter. Importantly, by implementing the whistleblower bounty program before cartel screening, governmental authorities would gain the expertise necessary to enforce antitrust laws without impeding innovation.
* Staff Member, Fordham Intellectual Property, Media & Entertainment Law Journal; J.D. Candidate, Fordham University School of Law, 2020; B.A., Human Rights and Political Science, Columbia University, 2015. Thank you to all members of the Journal for their assistance, and in particular, Senior Writing & Research Editor Elliot Fink for his thoughtful review and comments. Most importantly, thank you to my husband Paul and my parents Vladimir and Natalia for their unflinching love. I am especially grateful for my mother-in-law Stephanie for being an impactful source of strength, inspiration, and support.