Overview
Pricing strategies and tools are under intense scrutiny as regulators, competitors and private plaintiffs increasingly challenge how companies set, adjust and justify prices. On May 27, 2026, Skadden hosted a webinar to examine the ways that ordinary pricing decisions can carry meaningful antitrust and competition risk, addressing topics ranging from algorithmic and dynamic pricing to heightened focus on information sharing and renewed enforcement of the Robinson-Patman Act. The discussion explored trends at the federal and state levels and practical ways that companies can focus on mitigating risk while preserving commercial flexibility.
Algorithmic Pricing
Regulators and private plaintiffs have scrutinized algorithmic pricing, which is the practice of using algorithms to recommend, or in some instances automate, price setting. Recent antitrust litigations have focused on companies’ use of third-party algorithms to set prices. These cases have tended to survive motions to dismiss when competitors (i) commingled or shared their competitively sensitive information via a pricing algorithm provider and (ii) delegated pricing authority to the algorithm provider.
Beyond exposing companies to potential civil damages, the use of algorithmic pricing practices may also subject companies to criminal investigations when there is evidence of an agreement to fix prices, allocate markets or rig bids.1 Moreover, state legislators including in California and New York have begun introducing and passing laws to restrict use of pricing algorithms.
Benchmarking Practices
Similar to algorithmic pricing, regulators and private plaintiffs have also continued to scrutinize benchmarking, whereby companies compare their practices or performance against competitors. While benchmarking can promote efficiency and entry into a market, there is a risk that benchmarking practices can facilitate conspiracies to fix prices, or that the benchmarking practices themselves constitute unlawful information exchanges.
Antitrust claims challenging benchmarking have tended to survive motions to dismiss when (i) competitors collectively agree to participate in benchmarking; (ii) competitors share information reflecting current or future competitively sensitive information (particularly pricing); and (iii) the market in which the information is shared is highly concentrated and the defendants are key players.
The Robinson-Patman Act: A Revival?
The webinar also discussed the recent reinvigoration of the Robinson-Patman Act (RPA). The RPA prohibits sellers from contemporaneously selling tangible goods of “like grade and quality” at different prices to competing buyers when certain conditions are met and the pricing injures competition. Courts have inferred injury to competition when competing buyers face different prices over a sustained period of time. However, several defenses are available, including that the pricing was intended to meet the pricing of a competing seller and that the pricing was functionally available to the competing buyer. While the Federal Trade Commission (FTC) aggressively enforced the RPA in the decades following its enactment in 1936, federal RPA enforcement stopped from 2000 to 2023.2 In 2024, however, the FTC brought a suit against Southern Glazer’s, alleging that the wine and spirits distributor gave price advantages to large, national retailers, disadvantaging smaller retailers. The FTC’s suit subsequently survived a motion to dismiss in April 2025,3 before the parties announced that they had reached a tentative settlement on June 18, 2026.4 Bipartisan calls for RPA enforcement under appropriate circumstances have continued,5 which may lead to investigations or lawsuits in the future.
In addition to government enforcement, private RPA actions continue, with the U.S. Court of Appeals for the Ninth Circuit recently affirming a district court judgment against defendants that manufactured and distributed Clear Eyes eye drops for violating the RPA by selling Clear Eyes at lower prices and with greater promotional allowances to Costco than to the plaintiffs.6
Federal, State and Local Dynamic Pricing Regulation
Dynamic pricing — the strategy of adjusting prices in real time for products and services based on marketplace conditions — is also under increased scrutiny, as is personalized pricing (sometimes referred to as “surveillance pricing”), which is a type of dynamic pricing that involves charging customers different prices based on their characteristics or behaviors. These pricing strategies may create efficiencies and enhance competition by matching customers with products and by offering lower pricing under certain conditions. But state and federal legislators are examining these pricing practices — primarily through a consumer protection lens, and various states have adopted laws addressing dynamic pricing practices. For example, Maryland became the first state to restrict “surveillance” pricing via the Protection from Predatory Pricing Act. Other states, including New York, may adopt surveillance pricing “bans.”7 At the federal level, several members of Congress have also proposed legislation that would regulate surveillance pricing.
Takeaways
- When making pricing decisions, companies must remain vigilant about the type of information they provide to or receive from third parties, including algorithmic software providers.
- Companies will want to avoid commingling competitors’ nonpublic, competitively sensitive data in pricing algorithms, so that pricing recommendations for a company are not based on any competitor’s confidential information.
- Benchmarking reports need to be sufficiently aggregated and anonymized, while at the same time, companies need to be mindful that information sharing that implicates pricing or other sensitive industry metrics likely will attract greater scrutiny.
- Companies that sell tangible goods to competing buyers can implement internal programs to educate employees with pricing responsibility on the contours of the RPA (and on strategies to avoid RPA scrutiny): Sellers of such goods can implement oversight to ensure that more favorable pricing granted to one buyer is functionally available to competing buyers, or alternatively that pricing differences are adequately justified by product differences or efforts to meet a competing seller’s price.
- Companies should monitor consumer protection laws at the state and federal levels that may apply to dynamic pricing practices, even if those practices would not attract antitrust scrutiny.
For further information, please contact:
Michael H. Menitove, Partner, Skadden
michael.menitove@skadden.com
_______________
1 Daniel Glad, Acting Deputy Assistant Attorney General for Criminal Enforcement, Dep’t of Justice in his remarks at the Antitrust West Coast Conference (May 14, 2026): (“When the evidence of [agreements among competitors to fix prices, to allocate markets and to rig bids] is present and provable beyond a reasonable doubt, criminal charges are on the table.”)
2 Karen Hoffman Lent & Kenneth Schwartz, “Robinson-Patman’s Return: The FTC’s Recent Revival of Price Discrimination Enforcement,” New York Law Journal (Feb. 24, 2025)
3 Order Denying Defendant’s Motion to Dismiss, Fed. Trade Comm’n v. S. Glazer’s Wine & Spirits, LLC, No. 8:24-CV-02684, (C.D. Cal. Apr. 17, 2025), ECF No. 72
4 Joint Stipulation Regarding Stay of Litigation Pending Settlement, Fed. Trade Comm’n v. Southern Glazer’s Wine and Spirits, LLC, No. 8:24-cv-02684 (C.D. Cal. June 18, 2026), ECF No. 219
5 Letter from Sen. Chuck Grassley et al. to Pam Bondi (DOJ) and Andrew Ferguson (FTC) (Jan. 20, 2026); Letter from Sen. Elizabeth Warren et al. to Lina Khan (FTC) (Mar. 28, 2024)
6 L.A. Int’l Corp. v. Prestige Brands Holdings, Inc., No. 24-3776, 2026 WL 504763 (9th Cir. Feb. 24, 2026)
7 “Attorney General James Applauds Passage of Legislation to Protect New Yorkers From Predatory Pricing Schemes” (June 5, 2026)
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.
