Antitrust Developments in Real Estate: Regulatory Updates, Compliance Challenges, Lessons Learned From Recent Cases

Recent high profile antitrust lawsuits in the real estate industry demonstrate the importance of understanding the antitrust risks in the industry and how counsel can help their real estate clients create business and transactional practices to mitigate the risk of claims under federal and/or state antitrust laws.

Most notable is the $418 million National Association of Realtors (NAR) settlement that was reached in response to a suit alleging antitrust violations based on the cooperative compensation model that had been required for MLS participation. Other recent antitrust actions include a suit filed against Zillow claiming it is using anticompetitive tactics related to its process for accepting home listings for properties; the DOJ's suit, together with several states, against RealPage alleging its contracting with competing landlords to share nonpublic, sensitive information about their rental rates and lease terms to train and run their algorithmic pricing software and align rental rates is anticompetitive conduct in violation of the Sherman Act; and the Ninth Circuit case in CoStar Group Inc. v. Commercial Real Estate Exchange Inc. which alleged that CoStar used restrictive customer contracts to maintain its monopoly and suppress competition, which resulted in significant rulings by the court related to claims under the Sherman Act.

Counsel should understand what business and transactional practices in real estate could constitute antitrust violations, the regulations under which claims may be brought, and how to assist their clients with developing compliant business practices to mitigate the risk of and be in the best position to defend against possible claims.

Listen as our expert panel examines antitrust developments and enforcement activity in the real estate industry and offers best practices for compliance.