Your Client’s Prices Are Set by an Algorithm: State Surveillance Pricing Bans, Common Pricing Algorithm Laws, and the FTC’s New Personalized Pricing Framework

David C. Kully, Partner | Holland & Knight LLP

David C. Kully is an antitrust attorney in Holland & Knight’s Washington, D.C., office, head of the firm’s Antitrust Team, and a member of the firm’s Litigation and Dispute Resolution Practice. He is currently representing two multifamily apartment owners in a case alleging “collusion by algorithm” based on competitors’ use of the same pricing software. His practice centers on antitrust litigation, civil and criminal antitrust investigations, and counseling clients on compliance with the antitrust laws, and he draws on 18 years at the U.S. Department of Justice Antitrust Division, where he served as Chief of the Litigation III Section from 2013 to 2016.

• Education & Credentials

Mr. Kully earned his J.D., magna cum laude, from Cornell Law School, where he was elected to the Order of the Coif and served as an editor of the Cornell Law Review, and his B.A. in Economics from Dartmouth College. He is admitted to practice in the District of Columbia.

• Recognition & Leadership

Mr. Kully is recognized in The Best Lawyers in America for Antitrust Law (2026 and 2027), in Chambers USA for Antitrust (2025 and 2026), in the GCR 100 by Global Competition Review (2026), in the Lawdragon 500 Leading Global Antitrust Lawyers (2026), and in Who’s Who Legal: Competition (2023 and 2024). At the Department of Justice, he received the Attorney General’s Award for Distinguished Service in 2015 and 2016 and the John Marshall Award for Participation in Litigation in 2009.

• Professional Involvement

Mr. Kully served on the Long-Range and Strategic Planning Committee of the American Bar Association Antitrust Law Section from 2022 to 2024, on the Steering Committee of the D.C. Bar Antitrust Community from 2017 to 2023, and as Editorial Board Chair of the ABA Antitrust Section’s Annual Review of Antitrust Law Developments from 2018 to 2020.

• Experience

In private practice, Mr. Kully defends clients in major antitrust class actions and investigations, including the pending collusion-by-algorithm litigation against multifamily apartment owners, hub-and-spoke price-fixing allegations against a PVC manufacturer, price-fixing claims against a manufactured home community manager, real estate franchise commission disputes, a yacht brokerage commission conspiracy case, and monopolization and group boycott defenses. From 1998 to 2016 he served in the Antitrust Division of the U.S. Department of Justice, as Assistant Chief from 2008 to 2013 and as Chief of the Litigation III Section from 2013 to 2016, where his matters included United States v. Apple, Inc. (e-books price-fixing), the full trial in United States v. AB Electrolux, the consent decrees in United States v. National Association of Realtors and United States v. Ticketmaster Entertainment, and the investigation of the ASCAP and BMI consent decrees. Before joining the Department of Justice, he practiced in the Washington, D.C., office of an international law firm and served as counsel to the U.S. Senate on its investigation of campaign finance in the 1996 election cycle.

Benjamin A. Genn, Partner | Holland & Knight LLP

Benjamin A. Genn is a litigation and regulatory attorney in Holland & Knight’s Washington, D.C., office and a member of the Litigation and Dispute Resolution Practice and the Consumer Protection Defense and Compliance Team. He counsels companies in the airline, retail, hospitality, and technology sectors on artificial intelligence-driven and algorithmic pricing compliance, including surveillance pricing, personalized pricing, and dynamic pricing, and the algorithmic pricing transparency requirements that apply to them, and helps clients build pricing governance frameworks while navigating FTC enforcement, state attorney general inquiries, congressional investigations, and class action litigation arising from pricing practices. His broader practice covers consumer protection, advertising and marketing law, and unfair, deceptive, or abusive acts or practices (UDAAP).

• Education & Credentials

Mr. Genn earned his J.D., cum laude, from American University Washington College of Law and his B.A. from the College of Charleston. He is admitted to practice in the District of Columbia and Maryland, before the U.S. Supreme Court, the District of Columbia Court of Appeals, the Supreme Court of Maryland, and the U.S. Court of Appeals for the Fourth Circuit, and in the U.S. District Courts for the District of Columbia and the District of Maryland.

• Recognition & Leadership

Mr. Genn was selected to the Holland & Knight Emerging Leaders Class of 2025, was named a Holland & Knight Pro Bono All-Star every year from 2020 through 2024, and was recognized on the Capital Pro Bono High Honor Roll in 2017 and from 2019 through 2021. He has discussed pricing regulation on the firm’s podcast episodes “The FTC’s Personalized Pricing Policy Statement” and “Surveillance Pricing vs. Dynamic Pricing: What Companies Need to Know,” and in the program “Yes, Artificial Intelligence (AI) Regulation Exists: Hear Directly From the Federal Trade Commission.”

• Professional Involvement

Mr. Genn is a member of the American Bar Association and the District of Columbia Bar and serves on the board of The First Tee Young Professionals Council. Before entering private practice, he served as a judicial clerk to the Honorable Steven G. Salant of the Montgomery County Circuit Court in Maryland and as a judicial intern to Chief Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals.

• Experience

Mr. Genn’s regulatory work includes advising clients on algorithmic pricing transparency requirements and on surveillance, personalized, and dynamic pricing practices; securing the closure of an FTC investigation into deceptive advertising and of a Made in USA labeling investigation without penalties; negotiating an FTC settlement involving deceptive sales representations and undisclosed fees and a favorable settlement on advertising substantiation and social media marketing; advising on compliance with the Restore Online Shoppers’ Confidence Act (ROSCA) and the BOTS Act; and defending the target of a District of Columbia attorney general consumer protection investigation. In litigation, he has obtained dismissal of a District of Columbia Consumer Protection Procedures Act misrepresentation claim, achieved a directed verdict in a commercial lease breach dispute, represented an e-commerce company in multiple breach of contract trials, and defended fraud, trade secret misappropriation, and noncompete and nonsolicitation claims for clients ranging from emerging growth companies to Fortune 500 enterprises.

SESSION 1 – Algorithmic Coordination — Common Pricing Algorithms, Revenue Management Software, and the New State Antitrust Rules | 12:00pm – 1:00pm

This session examines the antitrust track of the new pricing-algorithm laws and how they change the analysis for any business that shares data with, or takes recommendations from, a pricing vendor. Attorneys will study California AB 325, effective January 1, 2026, including its definition of a “common pricing algorithm,” its prohibition on coercing others to adopt recommended prices, its modified pleading standard for conspiracy claims, and the exposure it creates for both software vendors and their subscribers; Connecticut’s residential rent-setting ban under HB 8002, its “revenue management device” definition, and its exemptions for aggregated data reports and affordable-housing programs; and New Jersey’s FAIR Act, which supplements the state antitrust statute with prohibitions on parallel pricing coordination and coordinating functions effective July 1, 2027. The session then turns to the Department of Justice’s November 2025 RealPage settlement terms, limits on nonpublic competitor data in real-time recommendations, the twelve-month aging rule for training data, the end of market surveys, and the requirement that auto-accept features remain optional and overridable, and explains how counsel can use those terms as a compliance blueprint for clients in multifamily housing, hospitality, retail, and any other sector where a shared pricing tool is in use.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Surveillance Pricing — State Disclosure and Ban Statutes, the FTC’s Section 5 Framework, and Counseling the Data-Driven Seller | 1:10pm – 2:10pm

This session addresses the consumer protection track: laws that restrict or require disclosure of prices set using a consumer’s personal data. Attorneys will compare the four enacted state regimes, New York’s Algorithmic Pricing Disclosure Act under General Business Law § 349-a, in force since November 10, 2025; Maryland’s Protection from Predatory Pricing Act, effective October 1, 2026, with its focus on large food retailers and delivery platforms, its 45-day cure period, and its lack of a private right of action; New Jersey’s Fair Price Protection Act, effective August 1, 2027, with its grocery-focused ban, its once-per-24-hours rule for cost-based price changes, its electronic shelf label moratorium beginning February 1, 2027, and its Consumer Fraud Act treble damages; and Connecticut’s Public Act 26-130, effective July 1, 2027, with its outright ban for retail sellers and its mandatory “THIS PRICE WAS INCREASED USING YOUR PERSONAL DATA” notice for others, and will map the exemptions for loyalty programs, bona fide discounts, subscriptions, and cost-based differences that determine whether a client’s pricing model survives. The session then examines the Federal Trade Commission’s proposed Enforcement Policy Statement on Personalized Pricing of August 19, 2026, its consumer-expectations theory of deception, its treatment of undisclosed data collection as an independent Section 5 concern, and the disclosure standard the Commission says would dispel a deceptive impression, along with the California and New York attorney general sweeps already underway. Attorneys will leave with a counseling roadmap: how to inventory a client’s pricing tools and data inputs, draft compliant disclosures and loyalty-program terms, structure privacy policies and vendor agreements, and prepare for the surveillance pricing bills advancing in New York, Illinois, and Pennsylvania.