Many in the real estate industry lauded President Donald Trump’s victory in the 2024 presidential election as they anticipated his win would usher in a new wave of weaker antitrust scrutiny on an industry that had spent the past four years battling its fair share of antitrust suits.
However, these hopes and dreams were put into question after the nominations of antitrust-hawk Gail Slater as assistant attorney general, and Roger Alford, a law professor at Notre Dame University, as deputy assistant attorney general in the Department of Justice’s (DOJ) Antitrust Division. Alford served as an expert witness testifying against the real estate industry in the Sitzer/Burnett suit.
In recent weeks, however, with Alford’s dismissal from the DOJ and the dismissal of three antitrust suits aimed at the National Association of Realtors (NAR), it appears real estate professionals may be getting their wish after all.
“By all indications there is very little appetite for antitrust enforcement from the DOJ,” Francis X. Riley, a partner at Saul Ewing LLP., said. “They just aren’t doing anything. They are letting these mergers go through with limited investigations or limited exchange of information, and this sheds light on the fact that the DOJ is not going to be active in antitrust enforcement actions.”
Civil lawsuits won’t stop
While the DOJ, which has historically been very active when it comes to NAR, appears to be taking a step back from real estate, that doesn’t mean the civil lawsuits have stopped. Just last week Jorge Zea, a real estate broker in Florida, filed an antitrust suit accusing NAR, local associations and MLSs of steering buyers to using buyer’s agents.
“I think what the DOJ is going to do is simply let the market dictate whether something is antitrust or not, meaning that they are going to allow private plaintiffs to bring their own actions, but I don’t see the DOJ taking a very strong stance with enforcement,” Riley said.
Under past administrations, Chuck Cain, a title industry attorney and the president of Alliance Solutions, said an uptick in consumer lawsuits has triggered the DOJ to take a closer look at an industry or company, but he is uncertain if that will happen under the current Trump administration.
“You may think that if civil litigation continues to pick up there would be some interest from the DOJ, but on the other hand, they may think that it will all be taken care of through the civil courts,” Cain said. “Historically though, if we see a lot of civil litigation or action from the state attorneys general, the DOJ typically gets involved.
Additionally, Cain notes that the most recent DOJ investigation into NAR and the Sitzer/Burnett commission lawsuit were brought during the first Trump administration.
Alford, who spoke out about his four-month stint at the DOJ earlier this week, is attributing the decrease in antitrust enforcement to the lobbying efforts by “MAGA-in-name-only” lobbyists.
According to Alford, the MAGA-in-name-only lobbyists view antitrust laws as “nuisances or obstacles to overcome.”
“Rather than the legitimate lobbyists who have expertise and perform traditional functions of education and engagement, corrupt lobbyists with no relevant expertise are perverting actual law enforcement through money, power, relationships and influence,” he said.
Other industries still face scrutiny
However, Cain notes that the antitrust investigations into Google and other technology companies are still occurring.
“Outside of NAR, the cases are rolling along. The Google case and other cases are continuing, so they really seem focused on tech right now,” Cain said.
While antitrust enforcement from the DOJ currently seems to have cooled, legal experts warn that real estate professionals and leaders should not become complacent.
“In regard to NAR, the DOJ could always come back. This is a pro-populist administration and DOJ. If they view something as being negative from this populist stance, they may go after it,” Cain said. “Additionally, in three and a half years we may have a very different administration that does want to focus on real estate. So, NAR needs to keep its guards up and everyone needs to mind their antitrust Ps and Qs.”
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