Algorithmic price fixing

(a) Presumption of agreement With respect to the use of a pricing algorithm that would violate section 4 of this Act, there shall be a presumption for purposes of section 1 of the Sherman Act (15 U.S.C. 1) that the defendant entered into an agreement, contract, combination, or conspiracy in restraint of trade and for purposes of section 5(a) of the Federal Trade Commission Act (15 U.S.C. 45(a)) that the defendant has engaged in an unfair method of competition if the plaintiff establishes that— (1) the defendant distributed the pricing algorithm to 2 or more persons— (A) with the intent that the pricing algorithm be used to set or recommend a price or commercial term of a product or service in the same market or a related market; or (B) and 2 or more persons used the pricing algorithm to set or recommend a price or commercial term of a product or service in the same market or a related market; or (2) (A) the defendant used the pricing algorithm to set or recommend a price or commercial term of a product or service; and (B) the pricing algorithm was used by another person to set or recommend a price or commercial term of a product or service in the same market or a related market. (b) Rebuttal The presumption under subsection (a) shall not apply to a defendant if the defendant did not develop or distribute the pricing algorithm and the defendant demonstrates by clear and convincing evidence that the defendant did not have actual knowledge or could not have reasonably known that the pricing algorithm used nonpublic competitor data. (c) Joint and several liability In a civil case in which the presumption under subsection (a) is applicable, any persons that distributed the pricing algorithm and knew, or could reasonably have known, that the pricing algorithm would use, incorporate, or be trained with nonpublic competitor data shall be jointly and severally liable for any violation of section 1 of the Sherman Act (15 U.S.C. 1) or section 5(a) of the Federal Trade Commission Act (15 U.S.C. 45(a)). (d) Relation to antitrust laws Nothing in this section shall impair or limit the applicability of the antitrust laws. (e) Effective date Subsection (a) shall take effect on the date that is 90 days after the date of enactment of this Act.