Competing Priorities: Navigating Emerging Risks in the New Digital Age of Antitrust

Partners George Mastoris and Sofia Arguello hosted a webinar on October 20 titled “Competing Priorities: Navigating Emerging Risks in the New Digital Age of Antitrust.” As antitrust enforcement priorities shift with the new administration, companies in the tech sector and beyond are facing new and evolving competition risk given the increasing sophistication of algorithms and artificial intelligence. The discussion reviewed emerging issues in antitrust law relating to employment practices, search term advertising, algorithms to optimize prices, and the accumulation of data. Winston attorneys also proposed practical steps companies should consider to mitigate the risk of costly investigations and litigations.

Key takeaways from the program include:

• The change in administration—including the progressive shift at the FTC and the recent Executive Order on competition—brings increased risk in the form of greater antitrust enforcement, as does Congress’s consideration of several bipartisan antitrust reform bills.
• Federal and state enforcers, as well as private plaintiffs, have been active in challenging agreements regarding search terms used in online advertising. Companies bidding on keyword search terms should evaluate the purpose and competitive effect of any such agreements.
• Enforcers are beginning to focus on the competitive effects of algorithms used in making business decisions. Because the use of pricing algorithms may invite antitrust scrutiny, companies should design their technology with antitrust compliance in mind.
• There is continued innovation from the government and from private plaintiffs in developing novel antitrust theories of harm against companies that amass consumer data, including an expanded focus on the overlap between data privacy and competition issues.
• The administration is particularly focused on labor markets, including on non-compete agreements between employers and employees which have traditionally been the province of state law. Companies should review their agreements for overbreadth.

To read more about our antitrust practice, click here. 

To view the presentation recording, click here.