On October 20, a California trial court granted summary judgment in favor of defendants in Mach v. Yardi Systems, Inc., rejecting class plaintiffs’ claims that defendants violated California’s antitrust law, the Cartwright Act, through their common use of rental pricing software.  The decision, which relied on “critical” evidence produced by defendant Yardi Systems in discovery, marks the first case to address antitrust theories related to “algorithmic price-fixing” at the summary judgment stage.

The Mach plaintiffs’ complaint alleged that Yardi and rental property owners engaged in per se illegal rent price-fixing scheme facilitated by sharing nonpublic information on rental prices through Yardi’s software.  Early in discovery, however, Yardi produced evidence which the court found directly refuted plaintiffs’ argument that defendants engaged in a “give-to-get” information-sharing scheme.  Specifically, the court explained that, although property owners “enter their own information” into Yardi’s software, that information could only be used “for their own purposes,” and not for “the generation of price recommendations” for their competitors.  And without evidence that Yardi’s software shared competitively sensitive information among competitors, the court held there was no basis to infer a horizontal or hub-and-spoke agreement between defendants in violation of the Cartwright Act.

The court also rejected class plaintiffs’ argument that the property owners’ common use of the same pricing algorithm was enough to violate the Cartwright Act, even if no competitively sensitive information was shared.  As with their information-sharing theory, the court rejected this fallback argument because the plaintiffs lacked evidence of any horizontal agreement among defendants to adopt Yardi’s recommendations.  Moreover, the court found persuasive the Ninth Circuit’s recent decision in Gibson v. Cendyn, which held that Las Vegas hotels’ common use of revenue management software to price hotel rooms did not violate federal antitrust laws.  At bottom, the court explained, the Gibson and Mach plaintiffs both sought to rely on a “collection of independent, nonexclusive software licenses” to establish an antitrust conspiracy amongst competitors.  But “adopting a common software application itself is not an antitrust violation,” the court held, because the law “does not require a business to turn a blind eye to information” or “decline to take advantage of a service” simply because “its competitors also use that service.”

The Mach decision adds to a growing body of state and federal decisions that reject algorithmic pricing theories without concrete evidence that sensitive information is shared amongst competitors.  The Mach decision also suggests that software vendors can effectively defend themselves against such theories by demonstrating early in discovery that their products do not, in fact, collect or use their customers’ nonpublic information to generate pricing recommendations for other customers.

Photo of August Gweon August Gweon

August Gweon counsels national and multinational companies on new regulatory frameworks governing artificial intelligence, robotics, and other emerging technologies, digital services, and digital infrastructure. August leverages his AI and technology policy experiences to help clients understand AI industry developments, emerging risks, and policy…

August Gweon counsels national and multinational companies on new regulatory frameworks governing artificial intelligence, robotics, and other emerging technologies, digital services, and digital infrastructure. August leverages his AI and technology policy experiences to help clients understand AI industry developments, emerging risks, and policy and enforcement trends. He regularly advises clients on AI governance, risk management, and compliance under data privacy, consumer protection, safety, procurement, and platform laws.

August’s practice includes providing comprehensive advice on U.S. state and federal AI policies and legislation, including the Colorado AI Act and state laws regulating automated decision-making technologies, AI-generated content, generative AI systems and chatbots, and foundation models. He also assists clients in assessing risks and compliance under federal and state privacy laws like the California Privacy Rights Act, responding to government inquiries and investigations, and engaging in AI public policy advocacy and rulemaking.

Photo of Brandon Gould Brandon Gould

Brandon Gould is special counsel in the firm’s Washington DC office. He is an antitrust and class action litigator who represents clients across multiple industries with extensive experience in the banking, financial services, and technology industries. Brandon is knowledgeable about quantitative economic analysis…

Brandon Gould is special counsel in the firm’s Washington DC office. He is an antitrust and class action litigator who represents clients across multiple industries with extensive experience in the banking, financial services, and technology industries. Brandon is knowledgeable about quantitative economic analysis and experienced with working with economists and other experts in litigation and investigation settings. He also maintains an active pro bono immigration practice that includes both direct representation of asylum seekers and data-driven immigration policy litigation.