That’s the position Rainmaker finds itself in now, alongside popular Vegas Strip hotels Caesars, MGM, Treasure Island, and Wynn, facing claims that it has facilitated a price fixing conspiracy in clear violation of federal antitrust laws.

In 2015, the New Yorker posited that “bot-driven price-fixing is more prevalent than the lack of prosecutions suggests.” A blockbuster report from ProPublica describes the use of landlord price fixing software by a company called RealPage which apparently helps increase rents.

A simple internet search for price setting software produces dozens of companies, like PriceFX, Feedvisor360, and SmartPricing, each of which advertises its use of data-driven machine learning and algorithmic repricing to “bolster efficiency and profitability” for their clients.

It flows from the mounting evidence of harm, the increased public awareness that people are being gouged by coordinated corporate market power, and legal theories developing in courtrooms across the country that these cases should be succeeding.

On the other hand, it might be something like the automated version of traditional trade associations, where competitors have long gathered to share industry standards and business strategies that, at best, protect members of the public from nascent harms and, at worst, enhance profits through unfair and anticompetitive means.

Over a year ago, my workplace, the American Economic Liberties Project, announced model legislation to solve for the Catch 22 problem that prevents plaintiffs from making it past the initial pleading stages.

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