In recent weeks, US antitrust enforcers provided more guidance in this space, while also signaling enforcement priorities. Recent developments include active litigation (Agri-Stats), amicus-style interventions (Frozen Potato Products), and calls for comments on potential new guidance on collaborations and information sharing.

Litigation Updates

Agri-Stats Loses Motion for Summary Judgment; Trial to Start in May, United States v. Agri-Stats, 23-cv-3009 (D. Minn.)

  • On February 24, 2026, the district court denied Agri-Stats’ motion for summary judgment on claims alleging that the company’s protein industry reports help major producers increase or maintain higher prices. Agri-Stats sought to end the government’s case entirely or, in the alternative, eliminate claims based on industry reports it no longer produces and claims no intent to revive. The court denied the motion and allowed all claims to proceed.
  • The court set trial to begin on May 4, enabling the US government to leapfrog related private litigation.

Policy Developments

DOJ and FTC Solicit Comments on Potential Guidance for Competitor Collaborations, Including for Use of Algorithmic Tools and Data Sharing

  • On February 24, 2026, the DOJ and FTC announced the agencies are seeking public comment on potential guidance for competitor collaborations. Prior guidance from 2000, which included guidance on information sharing, was withdrawn in December 2024. FTC Chairman Andrew Ferguson criticized the withdrawal as leaving “millions of businesses in the dark.”
  • The DOJ and FTC seek comments on, among other areas, “[w]hat new technologies and business models would benefit from additional guidance,” including “for example, algorithmic pricing, information and data sharing, or labor collaborations.”
  • The deadline for comment is April 24, 2026. DOJ and FTC will then decide whether to move forward with replacement guidance. This presents an opportunity for users and providers of algorithmic pricing tools to seek clarity on specific issues that impact their businesses.

DOJ Submits Statement of Interest in In re Frozen Potato Products Antitrust Litig., 24-cv-11801 (N.D. Ill.)

  • On February 27, 2026, the DOJ filed a statement of interest in In re Frozen Potato Products Antitrust Litigation, a multidistrict litigation pending in the District of Illinois, to address the application of Section 1 of the Sherman Act to information exchanges among competitors.
  • The statement makes two arguments: (1) sharing information with the expectation that reciprocal information will be shared in return satisfies the concerted action element of a Section 1 claim; and (2) courts should not apply a presumption of legality to standalone information sharing claims but should instead conduct a fact-specific inquiry into the competitive effects of the information exchange.
  • The statement is consistent with Biden administration statements of interest, including a March 2024 DOJ and FTC filing in Cornish-Adebiyi v. Caesars Entertainment regarding alleged casino hotel algorithmic pricing, an October 2024 filing in In re Pork Producers Antitrust Litigation regarding alleged information sharing among meat producers via Agri-Stats, and a March 2025 DOJ filing in In re Multiplan regarding healthcare out-of-network reimbursement rates.
  • Like prior statements, the new statement argues that information exchanges or coordination through a third-party intermediary can violate Section 1. The statement also reiterates the DOJ’s view that information exchanges can violate Section 1 under the rule of reason, regardless of whether the information is aggregated, anonymized or historical and regardless of whether a plaintiff alleges that the exchange facilitated price-fixing or is a standalone information sharing claim.

Guidelines for Assessing and Mitigating Antitrust Risk
Below are some of the key issues we have seen emerge as we monitor these areas of the law and some questions you might consider asking about the software provided or used by your business.

ISSUE QUESTIONS
Inputs: Tools that rely on public, lagged, and/or anonymized data tend to be less risky than tools that rely on confidential, current data from competitors. If a tool uses nonpublic information, companies should be attentive to whether there is a risk that they can access competitors’ confidential data (and vice-versa).

·       What data is used?

·       Is the data public or nonpublic?

·       Is the company providing or receiving nonpublic commercially sensitive information?

·       How current is the data?

·       What data is available to participants?

·       Is data from competitors segregated?  Are competitors’ data pooled—either for training an algorithm, to generate recommendations, or for some other reason?
Independence: Ensuring that pricing recommendations are nonbinding reduces antitrust risk.

·       What are the terms of use?

·       Are settings customizable? Are competitors’ settings shared (directly or indirectly)?

·       What is the output?

·       Are there recommendations?  If so, what are they—prices, commercial terms, or benchmarks?

·       Are recommendations binding, or can individuals deviate from them?

·       How often do deviations occur in practice?
Marketing: Public statements touting a tool’s ability to discipline, optimize, or otherwise increase prices or revenues across an industry can be problematic.

·       How it the tool marketed and distributed? As means to increase profitability? For disciplining sales and pricing?

·       How widely is the tool used in the industry?

·       Does the company know if its competitors are using it? Would the company use it regardless?
Business Rationale: Ideally, there are documented procompetitive bases for using the tool, such as increasing efficiency or lowering prices for customers

·       What are the company’s expectations or reason for using the tool?

·       What benefits has the tool led to in practice?