Algorithmic Software-Facilitated Price Fixing with Jonathan Rubin

Everyone knows that price fixing is against the law, chiefly Section 1 of the Sherman Act.

Competitors may not collude, i.e., agree, to keep prices where they want them, but there are relatively new pricing platforms that some companies maintain take them out of the equation, so they do not have to share private information directly with competitors. Instead, they claim, they feed their data to a third-party which uses algorithms to come up with pricing for these competitors based on data they all contribute. The subject has been getting a lot of attention as cases mount against a company called RealPage, a firm that provides shared pricing services for landlords. The company faces dozens of suits in multidistrict litigation and has also captured the attention of federal antitrust law enforcers. But they are not the only company finding themselves in litigation. 

As our guest recently wrote: “When pricing algorithms are used by individual firms, such as airlines, e-commerce platforms, ride-share and room-share companies, stock traders, and others, there are unlikely to be anti-competitive consequences. It is when market competitors avail themselves of the same algorithmic program or service that the specter of unlawful collusion arises.” That risk increases as markets become more concentrated, he says. 

He is Jonathan Rubin, Partner and Co-Founder of MoginRubin LLP, a widely recognized competition law attorney, economist, and commentator who has presented at antitrust conferences in the United States and Europe, testified before several congressional committees, and before the Directorate General for Competition of the European Commission.  

“The fact that these services employ an algorithm is not central to what's going on in this scenario,” he told me, “because what's important is the conduct of the businesspeople involved.”

Listen to my interview with Jonathan Rubin as we discuss what algorithmic or software-facilitated pricing is, what the law says about price collusion, how this new pricing mechanism violates that law, and recent developments in litigation.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [e-mail].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Episode Transcript

Tom Hagy (00:00):
Jonathan Rubin, thank you very much for talking to me
today.

Jonathan Rubin (00:03):
Thanks for inviting me.
It's a pleasure to be here, Tom.

Tom Hagy (00:05):
So we're talking about today is algorithmic pricing,
so-called, but I thought firstof all we would get the
definition right.
What is it and what else mightwe call it?

Jonathan Rubin (00:18):
Well, algorithmic pricing is a phrase
that has sort of grown up aroundthe recent interest in
determining whether or not thecommon use of software by
competitors might be a violationof the antitrust laws.
This is a fairly new technologythat involves the application

(00:40):
of sophisticated computersoftware to create price
recommendations and companiesrun the software and sell it as
a service to competitors whoreceive those recommendations
and rely on them.
So really the fact that itemploys an algorithm is not
central to what's going on inthis scenario, because what's

(01:05):
important is the conduct of thebusiness people involved.
So you might look at it assoftware-aided price fixing,
because in certain circumstancesprice fixing is really the
conduct that's being engaged inand the focus should be on that
rather than the mechanism toaccomplish it.

Tom Hagy (01:27):
Well, what type of mechanisms were used previously
in history?

Jonathan Rubin (01:30):
A complaint was recently filed in this area that
pointed out that price fixingas a human activity has been
intermediated by, you know, thePony Express and the US mails
and the telephone, then byemails and text messages and now
by the common use of softwareprograms.

Tom Hagy (01:53):
What types of industries or companies are most
often using this software-aidedpricing platform?

Jonathan Rubin (01:59):
In recent years and by that I mean the last two,
maybe three years it's come tothe attention of antitrust
enforcers and antitrustplaintiffs' attorneys that some
industries are susceptible to atype of coordination that
involves the use of a thirdparty's software system, for

(02:22):
example hotel rooms.
The rate setting on hotel roomsin a competitive market is
performed by the individualhotels, but there are now
software services available tothe operators of hotels that
collect information that isotherwise not available in the
public domain and then createwith that information pricing

(02:43):
recommendations to their clientsand in so doing, promising them
to increase their overallrevenues, and in fact this
software is generally referredto as revenue management
software, or RMS or revenuemanagement solutions.
Hotels are particularlysusceptible.

(03:03):
So are rental housing units.
In fact, the principal casethat's now pending involves a
company called RealPage andtheir software revenue
management software that's usedby the owners of multifamily
rental units.

Tom Hagy (03:24):
Where else are you seeing it being used besides
with hotels and landlords andthe reimbursement of insurance
payments to healthcare providers.

Jonathan Rubin (03:34):
There are third parties that offer assistance to
insurance companies to helpthem determine the reimbursement
that is owed to anout-of-network healthcare
provider.
So that's a healthcare providerthat's not in the insurance
company's network, that theydon't have a continuing
relationship with and they haveto make reimbursements across

(03:55):
the country.
So they often use the servicesof a third-party software
provider which has an algorithmfor making recommendations for
those reimbursement levels.
So those are the main examplesof the industries now which have
come under scrutiny from theuse of a third-party software
vendor.

Tom Hagy (04:13):
Well for non-antitrust experts.
What does the law generally sayabout price collusion?

Jonathan Rubin (04:18):
Well, I think the place to start is Section 1
of the Sherman Act, which waspassed in 1890.
So this is a long-standingfederal law that we've had in
our country.
Section one says every contract, combination in the form of
trust or otherwise, orconspiracy and restraint of
trade or commerce among theseveral states or with foreign
nations is hereby declared to beillegal.

(04:39):
So the elements of this statuteare that there has to be an
agreement, which can be acontract or a combination or a
conspiracy.
It is a common intention toexecute a common plan.
It's a commitment to a commoncourse of action.

(05:00):
It's also called concertedaction, but for shorthand in the
law we call that the agreementelement.
And the second element is thatthe agreement must unreasonably
restrain trade and interstatecommerce.

Tom Hagy (05:13):
The Sherman Act was enacted in 1890.
So how has it evolved in thecourts since then?

Jonathan Rubin (05:18):
So over the years the courts have dealt with
what this means and what theparameters of this are.
The unreasonable requirement,for example, came out of a case
that interpreted the statute tosay that clearly the statute
doesn't mean that all contractsare restraints of trade that are
illegal, but only unreasonablerestraints of trade are
unreasonable.

Tom Hagy (05:38):
Are there other specific precedents that you
think our listeners should knowabout in this context?

Jonathan Rubin (05:43):
I think the next place to go is to look at how a
case in 1939 applied Section 1of the Sherman Act called the
Interstate Circuit case, andthat involved a couple of
theater chains in Texas and NewMexico Together.
They were jointly managed, orat least very close, and they

(06:04):
controlled about 75% of thetheaters in that area of the
country.
And they wrote a letter toeight movie studios, movie
distributors.
The same letter addressedeverybody.
All the addressees were on oneletter.
All the addressees were on oneletter and they said we want you

(06:24):
to consider that if you want tocontinue to do business with us
, the licenses that you allowfor the subsequent runs of the
first run movies that you arelicensing to us, those must be
exhibited at a minimum price of25 cents or at a time when the
price was usually less than 25cents, and they must not be

(06:48):
permitted to be shown in adouble feature.
What they actually said wasthat they invited the
distributors to agree to limitsubsequent runs of first-run
movies to a minimum admissionprice which was above current
prices and to prohibitsecond-run theaters from showing
double features for thosefirst-run movies that they were
exhibiting.

(07:09):
The Supreme Court had to reviewa decision of the district court
it was a direct appeal in thosedays it was an equity because
there was an injunction issuedevaluated the evidence
supporting the district court'sconclusion that, even though
each of the distributors hadresponded on its own

(07:31):
affirmatively to therestrictions that the theater
chains were demanding, theSupreme Court says in its
opinion the government iswithout the aid of direct
testimony that the distributorsentered into any agreement with
each other to impose therestrictions upon subsequent run
exhibitors and so in order toestablish the agreement element

(07:53):
of Section 1 in that case, thegovernment was compelled to rely
on inferences drawn from thecourse of conduct of the alleged
conspirators.
And one should note that thisis not an unusual situation.
Plaintiffs or the governmentenforcers who are plaintiffs do
not usually have the benefit ofdirect evidence of an agreement.
Folks do not engage in illegalconspiracies out in the open.

Tom Hagy (08:16):
Then where did the court come down on this?

Jonathan Rubin (08:18):
The Supreme Court observed that the
circumstantial evidence was suchthat, well they say, from the
beginning of the whole incident,each of the distributors knew
that the same proposals wereunder consideration by the
others and each was aware thatthey were all in active

(08:38):
competition and that withoutsubstantially unanimous action
by all of them with respect tothe restrictions for any given
territory, there was a risk of asubstantial loss of business
and goodwill of the subsequentrun theaters and independent
exhibitors, but that if theywere all together on it, there

(08:59):
was the prospect of increasedprofits.
So there was a common awarenessof the risk of saying no and the
benefits of saying yes, and sotherefore there was a very
strong motive for an agreement,concerted action, and of course
the theater chains tookadvantage of this very strong

(09:19):
motive in presenting theirdemands.
But what's interesting is thatwhat the case very much turned
on was the state of mind of thedefendants in the case.
They pointed out that they knewthe competitors, that each of
the competitors received thesame proposal, they were aware
of the risk of no agreement andthey were aware of the prospect

(09:42):
of increased profit withagreement, and there was
therefore a very strong motiveto engage in joint action.
All of this is pretty much aboutthe intentions and the state of
mind, although there was alsoempirical, circumstantial
evidence that the court used, inparticular that by complying
with the proposals, thedistributors would be departing

(10:05):
from a very customary previousbusiness practice.
There was also observed adrastic increase in the
admission prices in mostsubsequent-run theaters, as you
would expect.
So therefore, the holding wasthat the evidence supported the
trial court's inference thatthere was an agreement and note

(10:25):
that this is even in the absenceof communication, direct
communication on the subjectshown between the distributors.
There was nonetheless anagreement, and in holding that
what the court said, and I'llquote here it taxes credulity to
believe that the severaldistributors would, in the
circumstances, have accepted andput into operation with

(10:46):
substantial unanimity suchfar-reaching changes in their
business methods without someunderstanding that they were all
going to join, and we reject asbeyond the range of probability
that it was a result of merechance.

Tom Hagy (11:01):
So that decision, the interstate circuit case, was in
1939.
Bring us forward to itspresent-day importance and how
the DOJ relied on it in filing astatement of interest in the
RealPage rental softwareantitrust litigation case which
is pending in the MiddleDistrict in Tennessee.

Jonathan Rubin (11:18):
First, the DOJ said that under Section 1, it's
personally unlawful forcompetitors to join together
their independentdecision-making power to raise,
depress, fix, peg or stabilizeprices, and they also say that
the machinery employed by acombination for price fixing is
immaterial.
The question in this case, theDOJ stated, is whether the

(11:42):
defendants have violated Section1 of the Sherman Act by
allegedly knowingly combiningtheir sensitive, non-public
pricing and supply informationin an algorithm that they rely
upon in making pricing decisions, with the knowledge and
expectation that othercompetitors will do the same and
, importantly, in establishingconcerted action.

(12:03):
The DOJ claimed in theirmemorandum, the law does not
require a showing ofsimultaneous action or even
action that is close in time.
Quote from Interstate Circuit.
It is elementary that anunlawful conspiracy may be, and
often is, formed withoutsimultaneous action or agreement

(12:24):
on the part of the conspirators.

Tom Hagy (12:26):
From there, the DOJ analyzed the facts alleged in
the case against RealPage, aservice used by landlords to
price multifamily housing units.
So, based on that, what did theDOJ argue in its statement of
interest?

Jonathan Rubin (12:40):
The DOJ said that the factual allegations in
those complaints against thelandlords and against RealPage
point to evidence of aninvitation to act in concert,
followed by acceptance, evidencethat is sufficient to plead
concerted action underinterstate circuit.
So under interstate circuit, itsuffices to show that RealPage

(13:02):
proposed the price fixing schemeto competing landlords who were
each aware that its competitorswere also being invited to
participate in the scheme andthe competitors adhered to it,
generating a commonunderstanding among the
competitors that they wouldincrease prices collectively by

(13:23):
using RealPage.
So this statement by the DOJ isalmost pulled directly from the
reasoning and holding ofinterstate circuit.
And what's really interestingis that interstate circuit 1939,
and this case is 2023, and oneinvolves software and the other

(13:45):
involves a letter.
It doesn't matter.
It has to do with theintentions of the parties and
what the true nature of theirbehavior is what do you think?

Tom Hagy (13:54):
Has the DOJ made its case and is interstate circuit
going to be enough?

Jonathan Rubin (13:59):
And I'm going to say no, but there is more.

Tom Hagy (14:03):
How are the companies defending themselves?
I mean, it sounds like they'resaying well, there's no specific
, explicit agreement to collude,but who does that?
So how are they defendingthemselves?

Jonathan Rubin (14:15):
a piece recently where he said no legal statute
or precedent that people who usethe same software to inform
their decision-making representsanything even remotely similar
to collusion.
Another point is that there'sno intent to agree, there's no

(14:40):
making of an agreement, becausethere is no direct interaction
between the users.
And then finally, the evidenceabout the intentions and all of
that stuff.
That is speculation and weshouldn't be speculating about
what's you know are theintentions and what is the what
are the motivations of thedefendants.

(15:03):
I think all of those are alittle bit desperate and a
little bit misguided, becausethere's a little more to the
story and it ends up being thatthere's a number of
considerations or kinds ofcircumstantial evidence, all of
which, when they're present,makes a pretty overwhelming case
.

Tom Hagy (15:22):
But when I asked you if the DOJ had made its case and
whether Interstate Circuit wasgoing to be enough, you said no.
Why is that?

Jonathan Rubin (15:29):
Because of some of these criticisms in
Interstate Circuit.
That was an agreement thatexpressly required the
distributors to, you know,require minimum pricing by
second-run theaters and restrict, you know, output, meaning no
double features where, as inRealPage, there's a third party
who purports to be offering aservice to competing clients and

(15:52):
they're not jointly solicitedthe way they were in interstate
circuit.
They go to the clientseparately and say sign up for
our services.

Tom Hagy (15:59):
So what else is needed besides the offer and
acceptance?

Jonathan Rubin (16:02):
setup of interstate circuit, the
centralization ofdecision-making, as expressed in
the Supreme Court case from2010 of American Needle.
The Supreme Court thererecognized how important
independent decision making isin the market to the competitive
process.

(16:22):
And in fact, when you thinkabout it, the economics of
section one is a prohibitionagainst competitors engaging in
what economists call jointprofit maximization.
And that's important, becauseeconomic decisions that you make
in the best interests of agroup, so all the competitors
together, for example, are notthe same decisions that are made

(16:45):
by independent actors makingdecisions in their own
self-interest, and that is theproblem, that is the harm,
that's the evil that Section 1seeks to prevent.
So, rather than you know, havean evidentiary argument about,
is there sufficient evidence ofan agreement, as between the

(17:08):
group, it's really a question ofwhether or not the group is
jointly profit maximizing orthey're individually profit
maximizing, and for that, theAmerican needle point of view
regarding centralization ofdecision making is very
important.
In citing American Needle, theDOJ said in its statement of
interest in RealPage thatsection one applies to

(17:31):
collaborations that eliminateindependent decision-making.
However they've been broughtabout, realpage has themselves
stated that the ability to quote, outsource daily pricing and
ongoing revenue oversight closequote to RealPage Allows
RealPage to set prices for itsclients' property quote as

(17:53):
though we, realpage, own themourselves.
Close quote.
So this is an advertisement forprecisely what American Needle
says should not happen, which isthe centralization of
decision-making.

Tom Hagy (18:08):
Then what did the district court rule?

Jonathan Rubin (18:10):
The district court in RealPage issued an
order where it upheld themultifamily housing complaint
and they observed that theRealPage revenue management
solution clients provideRealPage with independent,
commercially sensitive pricingand supply data.

(18:30):
To allow RealPage to use thisdata to set prices for not only
their own properties but alsothe properties of their
horizontal competitors who useRMS, the clients must be willing
to quote, outsource their dailypricing and ongoing revenue
oversight by accepting pricerecommendations 80 to 90% of the
time.

(18:51):
The relevant question, as it iswhenever you're considering
circumstantial evidence ofconspiracy, is whether or not
we're talking about parallelconduct of the sort that's the
product of independent action,or is there a plausible
inference of unlawful agreement,that is, are the competitors
jointly profit maximizing?

Tom Hagy (19:12):
So give us the litigation landscape about how
many cases are out there andyou've got one as well.

Jonathan Rubin (19:18):
There are I've counted depending on how broadly
you cast the net, but between20 and 30 pending pieces of
litigation now involvingsoftware-aided price fixing.
There are cases involving anationwide class of the
multifamily housing units.

(19:39):
That's the real page we've beentalking about.
There are specialty softwarecases involving a different
software Yardi Systems cases.
That's also for multifamilyhousing renters for a different
set of landlords but asignificant proportion of
landlords in any local market.

(20:01):
There's specialty software thatis built for casino hotels
which have a different demandprofile than ordinary hotels,
and there's cases against theSendin Group and their software
Rainmaker.

Tom Hagy (20:18):
But what was different about the Gibson case?
Why did the Gibson court notallow it to proceed, while
RealPage is allowed to proceed?

Jonathan Rubin (20:26):
proceed while real page is allowed to proceed.
The Gibson Court made theobservation that a hub and spoke
theory of the Sherman Actliability, where you know, in
fact you've got horizontalcompetitors connected by a wheel
rim and in the middle is athird party with spokes going
out to each of them, that isfulfilling some function having

(20:49):
to do with coordination orcreating the opportunity or
enforcing the cartel.
Whatever the case may be, wecall that a hub-and-spoke theory
of sermon act liability and thegibson court said that if
you're going to use that theorybased on the use of algorithmic
pricing, it would depend in parton the exchange of non-public

(21:11):
information between competitorsthrough the algorithm.
The court found that it wasquote unclear whether the
pricing recommendationsgenerated to hotel operators
included competitors'confidential information fed in.
Perhaps they only get their ownconfidential information back
mixed with public informationfrom other sources.

Tom Hagy (21:33):
Then how does that decision inform future cases?

Jonathan Rubin (21:36):
This highlights some of the additional types of
elements of evidence that wemight look for in order to have
greater security that we haveidentified unlawful conduct, and
that is the question of whethernon-public, proprietary,

(21:56):
competitively sensitiveinformation of the kind that you
would not and should not sharewith your competitors is being
sent to the software, andwhether the software is sending
back information that in somedegree employs or relies on or
depends on competitivelysensitive information that your

(22:19):
rival has sent in.
So this takes the exchange ofinformation, which is evidence
of possible collusion.
It's not of itself illegal, butit's very damning evidence of a
conspiracy in the context ofother evidence.
This is not merely an exchangeof information, no-transcript in

(23:08):
some way.
If the recommendation thatyou're getting back from the
third party would not have beenable to exist but for the input
by your rivals of competitivelysensitive information, then I
think that's a very importantindicia that the software is

(23:28):
aiding price fixing.

Tom Hagy (23:30):
Okay, you've got a case of your own.
What can you tell us about thatone?

Jonathan Rubin (23:33):
We at my firm, at Mogan Rubin are counsel for
plaintiffs that have sued SAS,who have a program called the
IDEAS program, which is used byhotels.
We have identified 17 USmetropolitan statistical areas
where there are a significantnumber of hotels that are using

(23:57):
the SAS IDEAS software andessentially we believe that the
various indicia that we've beentalking about today of when
there is an agreement throughthe use of a common software
platform are present in thatcase.
The case has recently beenfiled, so there's nothing to
report as yet.

Tom Hagy (24:18):
So how does your case stack up or line up with all of
various requirements andprecedents?

Jonathan Rubin (24:22):
we've discussed already that case fulfills the
various criteria that we'vediscussed.
There's a change in conduct.
There is proprietary informationgoing into the software and
information coming back whichwould not have been feasible or
possible without the rival'sproprietary information.

(24:46):
There's a very important elementabout conduct that's against
your self-interest.
Generally, raising priceswithout some understanding from
your co-conspirators is againstyour self-interest because
you'll lose business andcertainly providing confidential
, non-public, competitivelysensitive information to a third

(25:07):
party is against your owninterests unless you know that
your rivals will also providethe same information.
There's various evidence andallegations that the
participants in certainly in theSAS in our case, and in
RealPage, knew very well thatnot only were they providing

(25:29):
their non-public information,but so were their rivals, and
it's not a huge leap to believethat they would not have
provided that information ifthey were, if they did not know
that their rivals were alsodoing the same.
So there are many of the boxesthat there's some, a combination
of the sort of classicantitrust plus factors that go

(25:54):
into supporting the inference ofan agreement, together with
some more modern ones, and thatcreates a cluster of
circumstantial evidence whichmakes it very difficult to
imagine what else, beside pricefixing, the purpose of the whole
enterprise is.

Tom Hagy (26:15):
So take this back to how interstate circuit applies
in this case.
What's kind of?

Jonathan Rubin (26:20):
fun about interstate circuit is that the
Supreme Court made anobservation that there was no
upper level executive presenteda trial to explain why all of
the distributors decided to dothe same thing.
There was no legitimatejustification presented.

(26:42):
All they had were sort of localmanagers who did not have
visibility into what was goingon on a sort of industry level,
come in and say, oh, we decidedon our own to do this and, as
the judge said, it just createdstrange credulity.
But they used that absence ofevidence to create an adverse

(27:04):
inference.
Where is the upper levelexecutive giving us the real
non-price fixing reason thatthey're doing this?
I think you get a similardynamic in the real page and the
SAS and the you know what we'renow calling the software aided
price fixing.

Tom Hagy (27:20):
I guess some would argue that one person's
coincidence is another person'sconspiracy.

Jonathan Rubin (27:25):
You're getting close to that third point that
the commentator made, thatevidence bearing on incentives
is just speculation about whattheir motives are, what their
intent is.
Well, that's not true, you know.
There's a certain sense inwhich, come on, we all know what
the distributors were up so, sothat that would be in the
group's best interest ratherthan in the individual's

(28:05):
self-interest.
So, therefore, making a jointprofit.

Tom Hagy (28:08):
Shifting gears a little bit.
Going on to legislation,senator Amy Klobuchar of
Minnesota has been banging thedrum on updating, modernizing
antitrust law.
She recently proposed theAlgorithmic Pricing Collusion
Act.
Right now it only hasDemocratic support, so who knows
about its prospects?
But regardless, what do youthink of it?

Jonathan Rubin (28:28):
Well, I'm not a legislative expert or a lobbyist
, but my sense is that I thinkit's good to get a bill out
there, if for nothing else butfor discussion purposes the bill
does have.
It has a number of definitions.
For example, it definesalgorithmic pricing, it defines

(28:49):
various things and it tries tocapture the nature of certain
behavior, and I think that itprobably should sort of sit
there for a while until thereare some more judicial decisions
that hone in on precisely whatthe essence of the conduct is.

(29:10):
That's sufficient in order toinfer price fixing.
You know I'm a pro-enforcementperson.
I think the antitrust laws arevery important and should be
enforced, but in order to retaintheir legitimacy, it's very
important that they avoid falsepositives.
We need to be very rigorousabout what the requirements are

(29:32):
before we can find a violationof Section 1 and whether or not
there's been sufficientexperience with this type of
price fixing to allow us to drawup legislation that sort of
puts these things in stone andsets things in certain
definitions.
It might be a little bit earlyfor that.

(29:52):
I appreciate the effort, but Ithink it might be just a bit
premature.
I think we ought to let theantitrust courts get an
opportunity to analyze thevarious flavors of this behavior
before we attempt to make astatute.

Tom Hagy (30:07):
We've covered a lot of ground.
Do you have any final thoughts?

Jonathan Rubin (30:09):
Well, I just think it's a very interesting
area and is a testament to theingenuity of business folks who
have an understandable andconstant motivation,
particularly in highlycompetitive environments, to
engage in strategies that try toavoid or minimize competition,

(30:32):
and their revenues are enhancedby that kind of behavior, but
consumer surplus is lessened.
The whole point of the antitrustenterprise is to try to make
sure that the rules are clearand to deter, you know what is a
you know, a kind of a naturaldesire for business people to

(30:55):
want to sort of cut corners andmaybe blunt the rigors of
competition a little bit.
And so this is another step onthat journey and I think it's
important to do.
And so far the decisions madein the judiciary have been
pretty good.
Even in the Nevada case in LasVegas, if in fact, the pleading

(31:16):
was not sufficiently specificabout how RILO's information was
used in order to come up withoutput that was provided to the
clients, then maybe the courtwas right about that.
But that's an easilycorrectable pleading thing if
those aren't in fact facts, ifthat's the problem, I think

(31:38):
that's an important legalbenchmark, shall I say, for
whether or not we're talkingabout illegality and that's that
sort of.
Are you getting backinformation that wouldn't have
been possible to get without theinclusion, in whole or in part,
of your rival's confidentialinformation?
If so, I think then you'retalking about unlawful conduct.

Tom Hagy (32:00):
Well, jonathan Rubin, thank you very much for speaking
with me about this importantand interesting issue.
Thank you for having me, tom,it's been a pleasure.