Despite the dip in closings, prices continued to rise: the median sales price for single-family homes jumped 7.3% to $775,000.
With the advent of artificial intelligence and the increased use of sophisticated algorithms in software and real estate platforms, the risks in violating antitrust law and engaging in anticompetitive behavior increase exponentially and must be carefully considered and assessed.
Cloudbound joins PXG Westchester and My Salon Suite at 80–110 Nardozzi Place as well as LA Fitness and Dello Russo Laser Vision at Simone Development’s adjacent 70 Nardozzi Place.
With the advent of artificial intelligence and the increased use of sophisticated algorithms in software and real estate platforms, the risks in violating antitrust law and engaging in anticompetitive behavior increase exponentially and must be carefully considered and assessed.
The last few years have reshaped how antitrust law intersects with the real estate industry. Courts have approved sweeping nationwide settlements that changed commission practices. The Department of Justice (DOJ) turned up general antitrust enforcement, including on data-driven “algorithmic pricing.” In July, the National Association of Realtors secured several key defense victories in various antitrust lawsuits upholding long-standing membership structures, like the three-way agreement. For brokers, agents, and legal counsel, the through-line is simple: competition rules are tightening, documentation expectations are rising, and antitrust pitfalls now extend well beyond commission conversations.
U.S. antitrust law prohibits agreements that unreasonably restrain trade (see Sherman Act § 1 at https://bit.ly/45rTCbq), monopolization and attempted monopolization (see Sherman Act § 2 at https://bit.ly/4oEKNUE), and unfair methods of competition (see FTC Act § 5 at https://bit.ly/3V4Tbz2). Some of the violations are “per se” violations, which do not require any further analysis and are deemed violations on their face. Per se violations (e.g., price fixing or bid rigging) are inherently anticompetitive and courts do not analyze market effects. Simply engaging in the described behavior will constitute a violation.
Other violations are categorized as and analyzed under the “rule-of-reason.” The rule-of-reason antitrust analysis deals with more nuanced restraints, such as tying arrangements or Resale Price Maintenance (RPM), and requires evaluation of both pro- and anticompetitive effects in context of each specific case. The courts will assess whether the restraint has plausible, pro-competitive justifications or anti-competitive results.
Horizontal Restraints of Trade
Under Sections 1 and 2 of the Sherman Act, there are various forms of anti-competitive behavior that violate the law. These are normally considered horizontal restraints or violations. Violations can be categorized as either per se or rule-of-reason. Below is a list of the types of violations:
Price Fixing: Competitors colluding to set prices arbitrarily (per se).
Market Allocation: Dividing markets or customers among competitors (per se).
Bid Rigging: Collusion to manipulate bidding (per se).
Tying Arrangements: The requirement that there be a purchase of one product to get another. Often these are “per se” illegal, but sometimes they are also evaluated under the rule-of-reason when justifications apply.
Group Boycotts: Competitors refusing to do business with a target firm. In some instances, treated as per se violations.
Monopolization: When a dominant firm unlawfully maintains or achieves monopoly power via anticompetitive means.
Attempted Monopolization: Efforts to monopolize, even if unsuccessful, are actionable when they exclude competitors unfairly.
Vertical Restraints of Trade
There are also other laws that focus on vertical restraints of trade and anticompetitive behavior. Sections 3 and 7 of the Clayton Act (see https://bit.ly/4703lZ4) deal with the following types of antitrust violations:
Tying: Like tying arrangements covered under the Sherman Act, the Clayton Act specifically targets conditional sales that harm competition.
Resale Price Maintenance: Manufacturers controlling the minimum or maximum prices at which retailers can sell goods. This type of violation is scrutinized under the rule-of-reason analysis.
Mergers and Acquisitions: Transactions likely to lessen competition or foster monopoly are restricted.
In the real estate industry, it is important to note the areas of risk involving antitrust and anti-competitive behavior. A common violation consists of horizontal agreements among competing brokers or MLS participants (e.g., setting minimum commissions, boycotts/steering, or coordinated rules that suppress competition). These can be determined to be per se unlawful (e.g., naked price-fixing), or may be analyzed under the rule-of-reason when the restraint has plausible pro-competitive justifications.
Information exchanges that utilize and reveal sensitive pricing and strategy data, and reduce independent decision-making can also be an area of risk as is evident in the Greystar/RealPage matter (discussed below). Implementing tying arrangements and mandatory membership (i.e., access to one product or platform conditioned on buying another) if they foreclose competition is an area of risk. It is also important for platform rules (i.e., MLS participation and listing policies) to be carefully implemented to ensure that they do not materially exclude rivals or involve any price-fixing components.
A more recent development in the antitrust field, which can give rise to new risks, involves “algorithmic coordination” where competitors utilize a shared pricing algorithm or vendor that harmonizes pricing with competitors’ non-public data as evidenced in the Greystar/RealPage case (below). With the advent of artificial intelligence and the increased use of sophisticated algorithms in software and real estate platforms, the risks in violating antitrust law and engaging in anticompetitive behavior increase exponentially and must be carefully considered and assessed.
Muhammad v. National Association of Realtors
In Muhammad v. NAR (July 31, 2025) (see https://bit.ly/4oFintx), a Pennsylvania real estate professional alleged Sherman Act §§ 1–2 violations and various civil-rights claims tied to MLS access and association conduct. The plaintiff, a real estate broker, who represented himself, claimed that NAR and local Realtor associations violated antitrust laws by tying MLS access to NAR membership. He also alleged racial discrimination and suppression of minority professionals. The court dismissed the plaintiff’s complaint finding the allegations conclusory and insufficient to plausibly plead an antitrust conspiracy, antitrust injury or state action for the constitutional claims.
The judge dismissed the case with prejudice, calling the allegations “bare and conclusory.” There were insufficient factual allegations showing an anticompetitive restraint under Section 1 or proof of monopoly under Section 2. The tying claim failed under the Rule-of-Reason analysis because no evidence demonstrated that membership fees were exclusionary or that there was unreasonable restraint in trade. The ruling is significant as it reinforces that absent evidence of anticompetitive impact, structural membership and MLS access requirements (i.e., the three-way agreement) do not violate antitrust law.
Homie Technology v. NAR
In Homie Technology v. NAR (July 15, 2025) (see https://bit.ly/4fENEc9), Homie, a flat-fee brokerage firm, alleged NAR and major brokerages orchestrated a boycott and steering scheme, sidelining Homie from offering lower buyer agent commissions under rules like the Clear Cooperation Policy. Again, in this case, the judge dismissed the case with prejudice, holding Homie failed to plausibly allege antitrust injury.
The court held that Homie did not offer any facts or evidence showing foreclosure, exclusion, or barriers to entry caused by the defendants. Homie also failed to establish the required element of coordinated boycotting. Additionally, the judge also dismissed the case on the grounds that Homie failed to meet the statute of limitations. Homie has filed an appeal with the Tenth Circuit.
Eytalis v. NAR
In Eytalis v. NAR (July 23, 2025) (see https://bit.ly/41DQpEG), similar to the Muhammad case, a Texas broker challenged membership requirements tied to MLS access and alleged that the three-way membership structure violated both federal and state antitrust law. The district court dismissed the claims, holding that the pleadings did not support an antitrust violation or the related state-law theories. Again, this decision underscores that the facts of a particular case, and not baseless claims or conclusions, are an indispensable and critical part of any antitrust lawsuit. Plaintiffs must show concrete, coordinated conduct causing antitrust injury (e.g., output reduction, price elevation, or exclusion), not just disagreement with association policies, or else a court will likely dismiss a plaintiff’s case.
In August 2024, the DOJ and eight states (NC, CA, CO, CT, MN, OR, TN, WA) sued RealPage, a major vendor of revenue-management software used by large apartment owners and managers. The DOJ alleged that RealPage ran an unlawful information-sharing and price-coordination scheme where landlords fed the software non-public, competitively sensitive data (e.g., executed rents, concessions, occupancy, and other pricing information), and the algorithm then generated rent recommendations informed by rivals’ confidential data.
According to the DOJ’s complaint, RealPage created a hub-and-spoke platform where competitors regularly contributed non-public data and, in return, received coordinated pricing recommendations. Features like “auto-accept,” advisor monitoring of compliance, and limits on concessions allegedly pushed participating landlords toward uniform pricing behavior. The DOJ pled both a Section 1 conspiracy (unreasonable restraint of trade) and a Section 2 claim (monopolization of revenue-management software).
Greystar, the largest U.S. residential property manager, with roughly 950,000 units under management, was one of the landlords the DOJ said utilized RealPage’s tools and shared competitively sensitive data. On August 8, 2025, the DOJ announced a proposed consent decree and settlement (see https://bit.ly/45W9TXy) with Greystar (which remains subject to court approval), requiring it to halt using pricing tools that incorporate competitors’ data and to avoid sensitive information sharing. Washington D.C.’s Attorney General also obtained an initial settlement with another landlord in June 2025. It is expected that there will be continued enforcement on data-sharing and algorithmic coordination. The broader RealPage litigation continues in federal and state courts.
It is critical not to discuss competitively sensitive terms with competitors. It is imperative to avoid any and all conversations, whether they take place online, at association meetings, or in private, about specific commission rates, fee “floors,” steering strategies, or any other anticompetitive behavior. It is important to involve legal counsel in all instances and to use robust antitrust protocols in connection with legitimate collaboration in the market.
It is also important to review and vet data, algorithms, and related software and software providers. If pricing or lead-management tools that ingest market data are utilized, it is critical to confirm that these tools do not incorporate competitors’ non-public, current pricing or strategic inputs, and that outputs are independently reviewed. Firms should establish vendor diligence questionnaires, restrict data feeds, and document independent decision-making, and a focus sharpened by the DOJ’s RealPage action and the Greystar settlement.
One important best practice is to document pro-competitive justifications. For any policies that could affect rivals or competition (e.g., listing timing, data-standard requirements), record the consumer benefits, such as accuracy, fraud prevention, interoperability, safety, and always consider less-restrictive alternatives. Refreshing policies and training on a frequent basis also serves to protect against potential violations.
Antitrust risk in real estate now exists on various fronts: commission rule reforms are here to stay; plaintiffs continue to challenge MLS and association membership requirements; and data-driven coordination is yet another enforcement priority. NAR’s recent legal victories in Muhammad, Homie, and Eytalis show that courts will dismiss pleadings that are thin and conclusory, but they have also upheld the basic membership structure that has been an important part of NAR and the industry for many years. However, the bigger picture is the continued scrutiny of how the industry organizes information, sets rules, and competes. The firms that fare best will embed compliance into daily practice, including transparent negotiations, disciplined communications, careful vendor oversight, and policies that promote competition while protecting consumers.
Legal Column author John Dolgetta, Esq., is the principal of the law firm of Dolgetta Law, PLLC. For information about Dolgetta Law, PLLC and John Dolgetta, Esq., please visit http://www.dolgettalaw.com. The foregoing article is for informational purposes only and does not confer an attorney-client relationship and shall not be considered legal advice. The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the views or positions of HGAR, its affiliates, or any other entity.
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