Latest Intelligence: Antitrust Developments Impacting Providers and Users of Algorithmic Tools (September 2026)

Recent developments in litigation, enforcement, and public policy reflect growing scrutiny of how algorithmic tools can facilitate coordination and personalize prices. Courts are increasingly allowing claims to proceed where competitors pool non-public pricing or other competitively sensitive data and follow software recommendations at high rates, while distinguishing those allegations from the mere use of common software. Enforcers are pairing litigation with settlements that restrict the use and sharing of competitors’ sensitive data, and legislatures are targeting algorithmic rent-setting, although the focus is on tools which rely on non-public data. Regulators and policymakers are also focusing on AI agents, personalized pricing, and the potential for tacit coordination even without direct collusive intent.

Litigation Updates

Third Circuit Reverses Dismissal of Algorithmic Price-Fixing Claims in Casino-Hotel Case – Cornish-Adebiyi v. Caesars Ent., Inc., 184 F.4th 172 (3d Cir. 2026)

• On July 29, 2026, the Third Circuit reversed the dismissal of a putative class action alleging that several Atlantic City casino-hotels conspired to fix room prices through Cendyn Group’s Rainmaker dynamic pricing software in violation of Section 1 of the Sherman Act. The Third Circuit held that these allegations plausibly stated a hub-and-spoke conspiracy.
• Plaintiffs alleged that the casino-hotels supplied current, non-public room pricing and occupancy data to Rainmaker, which pooled that data across competing properties and generated coordinated rate recommendations that the hotels followed ~90% of the time.
• The court credited a variety of “plus factors”, including parallel conduct, financial motives, adoption of Rainmaker’s high pricing suggestions even amid declining occupancy (which would have been economically irrational if made independently), and the overwhelming acceptance of the suggested room rates (~90%), as supporting an inference of conspiracy, rather than mere independent use of common software. Further, the court treated allegations of Rainmaker’s VP urging adoption by “avoid[ing] the infamous race to the bottom” as evidence of a traditional conspiracy or invitation to collude. 184 F.4th at 185 (citation modified).
• On October 2, 2026, the Third Circuit denied a petition for rehearing en banc. Order Den. Pet. for Reh’g, No. 24-3006 (3d Cir. Oct. 2, 2026), Dkt. No. 120.
• This decision stands in contrast to the Ninth Circuit’s decision in Gibson v. Cendyn Group, LLC, 148 F.4th 1069 (9th Cir. 2025), which affirmed dismissal of a complaint involving the same software. Notably, the Cornish-Adebiyi plaintiffs pursued a horizontal hub-and-spoke claim and adequately alleged “the exchange of confidential information” between hotels through the software, while the Gibson plaintiffs pressed a vertical theory based on individual licensing agreements. 184 F.4th at 190.

California AB 325 Gas Station Class Action Filed – Casciani v. Knowledge Support Sys., Inc. (Kalibrate), No. 2:26-cv-02211 (E.D. Cal.)

• On June 22, 2026, the first private action under California’s amended Cartwright Act (AB 325) was initiated as a putative class action against gas station operators, including Marathon Petroleum, 7-Eleven, Circle K, BP, and Walmart, and fuel-pricing software provider Kalibrate. The complaint alleges that Kalibrate’s AI-powered pricing system was used to coordinate and inflate gas prices across more than 1,700 gas stations in the state.
• The plaintiffs plead a per se case of unlawful price fixing. Plaintiffs contend that Kalibrate’s pricing system links each station’s pumps and signs to Kalibrate’s central “Pricing Cloud,” where the algorithm “automatically” establishes the price at the point of sale, the sign and the pump. Plaintiffs allege that although the pricing can be manually overridden, Kalibrate emphasizes its “users surrender as much as 90% of their pricing decisions to its algorithm.” Plaintiffs also allege that Kalibrate’s pricing system has a “restoration” feature that allows gas stations to join in to “raise their prices contemporaneously and by a large amount.” Kalibrate’s marketing materials, according to the plaintiffs, also emphasize the importance of avoiding price competition. The plaintiffs also allege that the gas station defendants have allowed a third party to set prices, which would be against their self-interest in the absence of coordination.
• In the alternative, plaintiffs ask the court to apply a quick-look or a rule-of-reason analysis, alleging high market shares and that Kalibrate pools competitor data and provides competitors information, including nonpublic sales volumes.
• Plaintiffs allege that gas prices rose by approximately 6 cents per gallon on average in areas where Kalibrate is used, increasing to as much as 30 cents per gallon in markets with high adoption rates.
• The amended Cartwright Act, California’s principal antitrust statute, makes explicit that the prohibition on price-fixing extends to the use of a “common pricing algorithm” as part of a conspiracy to restrain trade. Cal. Bus. & Prof. Code §§ 16729, 16756.1 (2025).
• The case is currently at the pleading stage, with defendant’s response due October 23 and an initial scheduling conference set for November 9, 2026.

Court Allows Algorithmic Repricing Claims Against Zelis and Major Healthcare Payors to Proceed as Second Amended Complaint Expands Data-Pooling Allegations – In re Zelis Repricing Antitrust Litig., 2026 WL 867668 (D. Mass.)

• This litigation is a consolidated class action in the District of Massachusetts alleging that healthcare payors conspired with Zelis Healthcare to suppress out-of-network reimbursement rates through Zelis’s repricing tools. In March 2026, the court denied motions to dismiss, holding that the healthcare provider plaintiffs plausibly alleged both a horizontal conspiracy and a hub-and-spoke conspiracy among the payors and Zelis.
• On August 3, 2026, plaintiffs filed a Second Amended Complaint, which was followed on August 17, 2026, by answers from Cigna, Humana, Zelis, and Elevance Health, as well as a motion to dismiss from Aetna, a newly added defendant.
• The Second Amended Complaint alleges that each commercial payor shared confidential claims, pricing, and contractual data with Zelis, which pooled that data into proprietary analytical tools to generate suppressed out-of-network payment amounts, while Zelis was compensated through a commission based on the “savings” obtained for the payors.
• The complaint further alleges that the payors delegated their independent pricing authority to Zelis, which obscured which payor was responsible for each payment determination, depriving providers of the ability to identify and challenge individual payors.
• The court dismissed the claims against Aetna on September 30 for failure to state a plausible claim that Aetna used Zelis repricing tools. & Order on Def.’s Mot. to Dismiss at 6, In re Zelis Repricing Antitrust Litig., No. 1:25-cv-10734 (D. Mass. Sept. 30, 2026), Dkt. No. 347.
• Discovery is set to close in March 2027. The court has not set further deadlines but has expressed interest in a March 2028 trial.

S.D.N.Y. Enjoins New York’s Algorithmic Rent-Pricing Ban on First Amendment Grounds – RealPage, Inc. v. James, No. 1:25-cv-09847 (S.D.N.Y.)

• On September 29, 2026, a federal district court in the Southern District of New York granted RealPage’s motion for a preliminary injunction, enjoining enforcement of Section 3 of New York General Business Law § 340-B pending trial on the merits. Op. & Order re Mot. Prelim. Inj., No. 1:25-cv-09847 (S.D.N.Y. Sept. 29, 2026), Dkt. No. 52.
• In October 2025, the New York State legislature enacted Section 340-B to address rising rents. Section 2 bars anyone from facilitating agreements between competing landlords not to compete, including through software that performs a “coordinating function.” Section 3 makes it unlawful for landlords to set or adjust lease terms based on recommendations from such software.
• RealPage challenged the statute on First Amendment grounds, arguing that its algorithmic pricing recommendations constitute protected commercial speech. The court agreed that speech delivered through software is still speech, subjecting the statute to intermediate scrutiny. Intermediate scrutiny requires the State to show a substantial interest and a “reasonable fit” between the statute and that interest.
• The court upheld Section 2, holding that facilitating price-fixing is not lawful activity, and reading Section 2 as confirming that price-fixing carried out through software remains price-fixing and, thus, is not protected speech.
• The court found that Section 3 fails the “reasonable fit” requirement. Although the State has a substantial interest in eliminating restraints on fair competition, the court found the ban too broad because it sweeps in a substantial amount of protected speech, including software-based pricing recommendations based only on public data.
• The court noted that RealPage is only “marginally” likely to succeed on the merits but flagged the legislature’s limited support for regulating public-data algorithms. This aligns with the approach in the DOJ RealPage consent decree, which focuses on use of competitors’ non-public data to make pricing recommendations.

Court Allows Algorithmic Pricing Claims Against Equipment Rental Benchmarking Platform to Proceed – In re Constr. Equip. Rental Antitrust Litig., No. 1:25-cv-03487 (N.D. Ill.)

• On September 28, 2026, the U.S. District Court for the Northern District of Illinois issued an opinion on the defendants’ motion to dismiss largely allowing antitrust claims to proceed against Rouse, a pricing benchmarking platform and its rental company customers. The court dismissed claims against Rouse’s parent company RB Global, Inc. for failure to state a claim. Op. & Order, No. 1:25-cv-03487 (N.D. Ill. Sept. 28, 2026), Dkt. No. 299.
• The complaint alleged two separate violations of Section 1 of the Sherman Act: (1) a per se unlawful price fixing agreement, and (2) an unlawful information-exchange agreement.
• At the heart of the opinion were allegations that competing rental companies fed competitively sensitive, invoice-level pricing and utilization data to Rouse’s third-party benchmarking software on a nightly basis.
• The software allegedly pooled this pricing data and returned benchmarks in high, medium, and low ranges that flowed directly into the rental companies’ internal pricing systems. The complaint alleged that the software contained features that reinforced pricing compliance, that the rental companies priced within Rouse’s benchmarks 90% of the time, and that rental prices increased over the course of several years, despite declining utilization.
• The court distinguished the complaint from those analyzed in several similar cases, including Gibson v. Cendyn Group, LLC, 2024 WL 2060260 (D. Nev. May 8, 2024), aff’d, 148 F.4th 1069 (9th Cir. 2025) and Dai v. SAS Institute Inc., 2025 WL 2078835 (N.D. Cal. July 18, 2025), among others.
• In doing so, the Court credited plaintiffs’ allegations supporting that (1) competing rental companies uploaded non-public pricing data to the software, (2) the software used that information to produce benchmark price ranges, and (3) the software’s compliance features, combined with a 90% adoption rate, indicated that the output was “a pricing obligation, not just a pricing benchmark.” Op. & Order at 22.

Settlements and Enforcement

DOJ Files Consent Decrees with Willow Bridge and Pinnacle as State Claims Against RealPage Proceed – United States v. RealPage, Inc., No. 1:24-cv-00710 (M.D.N.C.);  Platkin v. RealPage, Inc., No. 1:24-cv-00710 (M.D.N.C.)

• On July 6, 2026, the DOJ filed a proposed consent decree with Willow Bridge Property Company LLC, one of the nation’s largest apartment managers, resolving the government’s Sherman Act Section 1 claims against the company in the ongoing RealPage enforcement action. Stipulation re Am. Compl., No. 1:24-cv-00710 (M.D.N.C. July 6, 2026), Dkt. No. 200.
• On September 4, 2026, the DOJ filed a proposed consent decree with Pinnacle Property Management Services, another major apartment management company, in the same action. Stipulation re Am. Compl., No. 1:24-cv-00710 (M.D.N.C. Sept. 4, 2026), Dkt. No. 213.
• Willow Bridge and Pinnacle are the fifth and sixth defendants to reach resolutions, following RealPage, Cortland Management, Greystar, and LivCor.
• Under the proposed decrees, Willow Bridge and Pinnacle must refrain from using algorithms that generate pricing recommendations based on competitors’ competitively sensitive data, cease sharing competitively sensitive information with competitors, refrain from attending or participating in RealPage-hosted meetings of competing landlords and accept a court-appointed monitor if they use a third-party pricing algorithm not certified under the settlement’s terms. The decree imposes a five-year compliance term with the possibility of early termination after three years. The settlements apply only to DOJ’s claims.
• On October 1, 2026, the district court denied motions to dismiss the Plaintiff States’ claims against RealPage and management companies Pinnacle, Camden and Willow Bridge, despite the consent decrees and settlements with the DOJ. The court rejected RealPage’s argument that the consent decree and its voluntary cessation of the conduct at issue mooted the Plaintiff States’ claims.
• The court found that the consent decree does not run to the Plaintiff States and can be enforced only by the DOJ. The decree also does not moot the Plaintiff States’ claims for civil penalties. Unless the states reach further settlements, the case will move toward trial..

DOJ and Seventeen States File Civil Complaint Against Egg Producers for Alleged Benchmark Manipulation – United States v. Cal-Maine Foods, Inc., No. 5:26-cv-04060 (N.D. Iowa); In re Shell Eggs Antitrust Litig., No. 3:26-md-03175-JDP (W.D. Wis.)

• On June 29, 2026, the DOJ and seventeen states filed a civil antitrust complaint alleging that Cal-Maine Foods, Versova, and Hickman’s Egg Ranch violated Section 1 of the Sherman Act by coordinating to submit bids on the Egg Clearinghouse (“ECI”) platform that were designed to artificially inflate the daily price quotations published by Urner Barry, a widely used market reporting firm. As many egg supply contracts are priced off Urner Barry’s quotations, higher quotations allegedly translate into higher prices for retailers and consumers. A parallel private litigation is ongoing in the Western District of Wisconsin.
• The complaint relies on direct evidence of agreement, alleging that defendants communicated by phone, email, and text to time and direct their ECI bids, some of which were at premium prices and unlikely to be filled, and that Urner Barry raised its quotations as a result, allegedly increasing egg prices for retailers and consumers.
• The DOJ simultaneously filed proposed consent decrees with all three defendants, which involved $3.3 million in combined civil payments, donation of 53 million eggs to nonprofits and food banks, and behavioral commitments. The settlement awaits final approval by the court under the Tunney Act.

Policy Developments

New Jersey Enacts Ban on Algorithmic Pricing in Rental Housing – Press Release, Governor Sherrill Signs the Forbidding the Algorithmic Inflation of Rent (FAIR) Act Into Law to Protect Renters from Algorithmic Rent Setting (July 20, 2026), https://www.nj.gov/governor/news/2026/20260720a.shtml.

• On July 20, 2026, New Jersey Governor Mikie Sherrill signed the Forbidding the Algorithmic Inflation of Rent (“FAIR”) Act into law. P.L. 2026, c. 43 (N.J.). Governor Sherrill stated that “landlords, who should be competing to provide the best price to renters, are instead colluding to drive prices up through so called ‘algorithmic pricing.’ That stops now.” The FAIR Act will go into effect in July 2027.
• The FAIR Act applies to all revenue-management software companies hired by landlords as agents or subcontractors and any landlords that have their own rent-pricing algorithms. The FAIR Act bars the collection of rent and lease data, its processing through software or algorithms and then the production of recommendations for rental prices or occupancy levels for landlords. The FAIR Act also makes it unlawful for companies operating such software or algorithms to facilitate price-fixing agreements among landlords.
• This law follows new antitrust provisions targeting algorithmic pricing enacted by New York, California, and Connecticut.

French Competition Authority Warns of AI-Driven Algorithmic Collusion – Press Release, Autorité de la Concurrence, AI Agents: The Autorité de la Concurrence Issues Its Opinion on the Competitive Functioning of the AI Agents Sector (July 17, 2026), https://www.autoritedelaconcurrence.fr/en/press-release/ai-agents-autorite-de-la-concurrence-issues-its-opinion-competitive-functioning-ai.

• On July 17, 2026, the French Competition Authority (Autorité de la Concurrence) published Opinion 26-A-05 on the competitive functioning of AI agents.
• The Authority observed that risks of algorithmic collusion could materialize if AI agents evolve to act as price-setting and product-promotion tools for online merchants, and as price negotiators and product recommenders for buyers. The Authority noted that if only a limited number of AI agents exist on the market, prices could be tacitly coordinated on the merchant’s side.
• The Authority further observed that interactions between a seller’s AI agent and a buyer’s AI agent could introduce biases resembling self-preferencing, and that advanced AI systems could learn to reach coordinated pricing outcomes driven by profit-maximization objectives, even without direct collusive intent.
• The Authority noted its alignment with the German Bundeskartellamt and the UK Competition and Markets Authority. The Authority recommended heightened vigilance and committed to close monitoring of competitive risks of AI agents.

Senate Antitrust Chair Questions Uber and Lyft on Algorithmic Pricing and Competition – Letter from Sen. Mike Lee to Dara Khosrowshahi, Uber Techs., Inc. & David Risher, Lyft, Inc. (July 14, 2026), https://www.lee.senate.gov/services/files/45B94F3D-27F1-477F-8959-8711B918B848.

• On July 14, 2026, Senator Mike Lee (R-Utah), Chairman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, wrote a letter to the CEOs of Uber and Lyft, raising concerns over the alleged opacity of their algorithmically driven pricing models.
• Senator Lee emphasized concerns arising from surveillance pricing, where riders requesting the same trip would be quoted different fare prices based on their willingness to pay.
• The Senator also stated that there could be price alignment between Uber and Lyft through shared vendors, data fees, and intermediaries.
• Senator Mike Lee requested written responses from Uber and Lyft by August 14, 2026, to fifteen questions covering fare and pay calculation methods, competitor monitoring practices, third-party vendor relationships, individualized pricing, and antitrust compliance testing.