Maureen Ohlhausen and Taylor Owings, partners in Wilson Sonsini's antitrust and competition practice, along with associate Cora Allen, have co-authored an essay included in the newly released Concurrences book Artificial Intelligence and Competition Policy, published in September 2024. The book provides a provocative examination of key areas in competition-related AI scholarship and serves as a valuable resource for legislators, policymakers, and enforcers assessing how competition law can adapt to the challenges posed by AI.

In their piece titled "What About Bob? Revisiting the Intersection of Antitrust Law and Algorithmic Pricing in 2024," Ohlhausen, Owings, and Allen explore the pressing legal questions surrounding the use of algorithmic pricing tools by competitors. As the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) intervene, a shift toward a more plaintiff-friendly legal environment is emerging, characterized by skepticism toward companies that utilize pricing algorithms to capture greater consumer willingness to pay. Legal assessments are increasingly relying on analogies to human decision-making, echoing a test that Ohlhausen coined while serving as Acting Chair of the Commission.  Courts are asking, “What about Bob?”—if a human could legally implement a specific pricing strategy, should an algorithm be treated differently? This question is pivotal for companies as they navigate three critical risk factors when adopting algorithmic pricing tools: (1) the degree of independent discretion exercised by users, (2) whether the algorithm is based on public or nonpublic data, and (3) the algorithm’s ability to manipulate market conditions to draw inferences.

To access the essay by Ohlhausen, Owings, and Allen, please click here.