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According to the prominent law firm Hogan Lovells, the administration is exploring “novel approaches” to antitrust issues—such as the use of price-sharing software among landlords—on an “unpredictable path.”
This characterization might be a bit generous. Critics argue that the situation is rife with unethical practices. Departing officials assert that decisions made by the Justice Department are influenced by bribery, and Trump appears to be reversing the limited measures taken by the previous administration that benefitted American workers. One significant change was the closure of a loophole in price-fixing, which had become increasingly exploited in the rental housing sector; its reinstatement is now uncertain.
Before delving into the ongoing corruption at the DOJ and its implications for the rental housing market, let’s briefly revisit recent history.
Biden’s One Notable Action
One of the intriguing contradictions of the Biden administration is its simultaneous dismal performance across many areas while also empowering the Federal Trade Commission (FTC) and the DOJ Antitrust Division to challenge the consolidation of power among the wealthy for the first time in decades.
Biden’s 2021 executive order, Promoting Competition in the American Economy, identified excessive market concentration and anticompetitive conduct as significant contributors to stagnant wages, higher consumer prices, and rising inequality.
Crucially, the order did not merely highlight these issues; it granted the DOJ and FTC the authority to vigorously enforce the Sherman Act, Clayton Act, Federal Trade Commission Act, and other specific competition laws.
And indeed, they took action.
One of their more significant measures was the closure of a significant price-fixing loophole left over from the Clinton administration, which was as wide as a truck.
The Clinton DOJ had allowed information sharing in the healthcare sector as far back as 1993, creating a loophole around the Sherman Antitrust Act, prohibiting contracts, combinations, and conspiracies that restrict trade or commerce.
This leniency extended beyond healthcare, as the interpretation was adopted across various industries. Consequently, firms increasingly utilized data companies offering software that enabled the rapid exchange of information between competitors, which facilitated lower wages and higher prices—essentially establishing covert national cartels without obvious market concentration.
A key player in these practices is RealPage, a private equity-owned firm functioning as a broker in a national property management cartel that has significantly inflated rent prices, especially where Wall Street-owned property managers dominate. Various lawsuits allege that RealPage uses its technology to orchestrate an illegal price-fixing operation, stifling competition among major landlords and leading to skyrocketing rents that have worsened America’s homelessness crisis.
Alongside various class action lawsuits, RealPage and the managers utilizing its systems are also confronted with a DOJ-led civil antitrust lawsuit (in December, the DOJ closed its criminal investigation into these price-fixing activities.) While the DOJ’s guidance and the actions taken against RealPage have deterred information sharing across industries, many companies remain in a state of uncertainty.
The DOJ in Turmoil
Despite the Trump administration’s revocation of Biden’s executive order on competition promotion, there has yet to be any alterations to guidance regarding information-sharing “safe harbors,” leaving the case against RealPage unresolved.
Is the administration committed to continuing its pursuit of such information-sharing practices, or does it intend to capitalize on the potential threat of enforcement?
For now, it appears they favor the latter. An August Wall Street Journal article highlights how corporations are trading public commitments to create jobs for leniency in antitrust regulations. One recent instance involves:
Through Mike Davis—a long-time Trump ally—and other lobbyists, Hewlett Packard Enterprise made undisclosed commitments, including pledges to generate new jobs in the U.S., to mitigate government opposition to its merger with Juniper Networks, which would diminish competition in the wireless networking sector.
This arrangement allowed HPE to finalize its acquisition of Juniper last month.
Additionally, U.S. Attorney General and corporate lobbyist Pam Bondi is orchestrating a purge at the DOJ, sidelining or dismissing career officials who were instrumental in pursuing cases related to corruption, price-fixing, securities fraud, and antitrust violations.
Gail Slater, the department’s foremost antitrust enforcer, has resisted the influx of lobbyists but is under considerable pressure from Trump loyalists both within and outside the administration. Last week, Slater saw her two senior deputies dismissed after they opposed the favorable terms negotiated by HPE with officials in Attorney General Pam Bondi’s office.
Slater and the two dismissed aides had raised their concerns about HPE’s choice of lobbyists for the settlement, drawing complaints from Davis and others. Senior figures like Chad Mizelle, Bondi’s chief of staff, and Stanley Woodward, nominated for the associate attorney general role, are likely to play more prominent roles overseeing Slater’s division moving forward, insiders suggest.
However, Mizelle is no longer in the picture—he has exited, possibly to shield the administration from any repercussions related to HPE’s dealings.
Roger Alford, a former deputy in the division who was recently let go, described the current environment as a power struggle “between authentic MAGA reformers and MAGA-in-Name-Only lobbyists,” adding:
“The Department of Justice is now awash with lobbyists lacking antitrust expertise, seeking special favors from those above them in the Antitrust Division.”
Firms embroiled in antitrust lawsuits, like RealPage’s parent company Thoma Bravo, are now engaging lobbyists close to Trump and exploring potential deals to continue their unlawful practices.
In this context, it’s likely that the Trump administration may choose not to reopen information-sharing safe harbors but rather permit such sharing on a case-by-case basis for companies that can afford to pay the appropriate price.
Conversely, some observers suggest the DOJ seems less vigilant about pricing algorithms and more focused on ways to benefit from large-scale mergers.
To emphasize the consequences of a lenient attitude toward such practices: last year, the White House Council of Economic Advisers estimated that RealPage’s system cost renters an additional $3.8 billion in 2023 alone. These higher costs arise amid a severe housing and homelessness crisis and coincides with a bipartisan initiative across the nation to criminalize homelessness, while the Trump administration works to drastically reduce federal housing support.
Impending Changes in Guidance?
While Trump and his administration frequently discuss antitrust, their understanding of what leads to market concentration is peculiar; they often cite government regulations as the root problem.
Take Trump’s April executive order, Reducing Anti-Competitive Regulatory Barriers. While it condemns “de facto or de jure monopolies,” it shifts the blame onto “anti-competitive regulations” as the culprits for market issues, claiming they “impose anti-competitive restraints” on free-market operations.
Following President Trump’s August nullification of Biden-era antitrust measures, the DOJ released a statement in support, declaring its commitment to launching a “new American Golden Age” through antitrust enforcement that promotes innovation and reduces regulatory burdens on competition.
Such assertions create cognitive dissonance. FTC Chairman Andrew Ferguson expressed enthusiasm regarding Trump’s repeal of the Biden executive order, stating that the Trump administration will enforce antitrust laws for the benefit of all American consumers and workers.
But how will that happen? Ferguson suggests a market “free from government intervention” will naturally regulate itself, urging a departure from the “top-down” regulatory approach. However, there is little indication that this will be replaced by a more grassroots strategy.
This framework resembles free-market ideology hidden under a MAGA banner of antitrust advocacy. Trump’s April directive instructed the FTC and DOJ Antitrust to compile a list of all anti-monopoly regulations believed to create monopolies. These were recently submitted, and amid efforts to boost the stock market, one can anticipate numerous “anticompetitive regulations” to be rescinded or significantly adjusted.
Over 125 recommendations have not been disclosed publicly, aside from a few notable cases. Will the enforcement against information sharing be among those categorically labeled as anti-competitive?
The fate of the price-fixing loophole and the federal lawsuit against RealPage will clarify the true objectives of the administration’s antitrust strategy.
Promoting Data Sharing
In the aftermath of the Google ruling, Assistant Attorney General Gail Slater (seen as one of the more competent figures—if not the best—in the current Justice Department) delivered a keynote speech at the Fordham Competition Law Institute’s 52nd annual conference, discussing information sharing.
The court imposed remedies requiring Google to grant qualified competitors access to its data and allow syndication of its search results, preventing Google from continuing to exploit its data advantage. This data-sharing will enable competitors—including emerging AI firms—to better compete.
There are legitimate questions regarding the accuracy of that claim, with many doubting its efficacy. As Matt Stoller pointed out, it may assist some generative AI companies that have access to capital markets.
More critically, Slater suggested that the data-sharing expectations set by the Google case should apply to all sectors:
The competitive value of data will likely resonate more profoundly across various industries as AI gains prominence. Take health data that can revolutionize insurance approaches or agricultural data on crop yields and weather that enhance efficiency. We’re all data-driven industries now. As various commentators note, data is the modern-day oil fueling progress in every sector.
However, absent from Slater’s claims is a discussion on how such data collection impacts consumers and whether it should even be collected or shared among industry players. Is it justifiable to share acquired AI training data?
If we consider RealPage and the rental market, what about sharing data like the following?
“To underwrite tenants splitting their rent into installments, Livble uses Plaid’s open banking data.”
Plaid’s system enables individuals to manage their financial data, effectively facilitating consent for sharing banking data with third parties? pic.twitter.com/FJJWVE0GJz
How does having RealPage share that information with major landlords fuel progress?
Consider also the recent report by 404 Media revealing that some landlords use a service to log into prospective tenants’ employer systems and illegally scrape their paystubs and other data. Would sharing such information accelerate progress?
In her speech, Slater further juxtaposed the “sledgehammer of regulation” against the “scalpel of antitrust,” arguing for targeted enforcement rather than “premature regulation,” which may entrench established entities capable of affording compliance. I interpret this as saying those entrenched can simply pay to skip the consequences of their legal violations.
So, is the argument that by permitting illegal information sharing among smaller players, they can compete with the lawbreaking market leaders?
This reasoning somewhat resembles the logic presented by First Lady Hillary Rodham Clinton in 1993 when she joined DOJ and FTC officials to unveil the creation of antitrust “safety zones,” claiming it would “make healthcare more accessible and affordable for all Americans.”
The outcome was starkly different. When Slater talks about driving “the engine of progress,” the glaring question is—progress for whom?
Former Principal Deputy Assistant Attorney General Doha Mekki of the Antitrust Division offered an obvious response:
An overly formalistic approach to information exchange risks facilitating frameworks that could lead to inflated prices, depressed wages, or hindered innovation.
