[Federal Register Volume 90, Number 170 (Friday, September 5, 2025)]
[Notices]
[Pages 43070-43133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-17086]
[[Page 43069]]
Vol. 90
Friday,
No. 170
September 5, 2025
Part III
Department of Justice
-----------------------------------------------------------------------
Antitrust Division
-----------------------------------------------------------------------
United States of America et al. v. RealPage, Inc. et al. Proposed Final
Judgment and Competitive Impact Statement; Notice
Federal Register / Vol. 90, No. 170 / Friday, September 5, 2025 /
Notices
[[Page 43070]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States of America et al. v. RealPage, Inc. et al. Proposed
Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Stipulation, and Competitive Impact Statement have been filed with the
United States District Court for the Middle District of North Carolina
in United States of America et al. v. RealPage, Inc. et al., Civil
Action No. 1:24-cv-00710. On January 7, 2025, the United States filed a
Complaint alleging that Greystar Management Services, LLC's agreements
with RealPage and other landlords to share information and align
pricing violate Section 1 of the Sherman Act, 15 U.S.C. 1. The proposed
Final Judgment, filed on August 8, 2025, bars Greystar from licensing
or using a revenue management software that relies on competitively
sensitive data and prohibits Greystar from sharing competitively
sensitive information with other landlords. Greystar must also
establish an antitrust compliance policy and cooperate with the United
States in this litigation.
Copies of the Complaint, proposed Final Judgment, and Competitive
Impact Statement are available for inspection on the Antitrust
Division's website at http://www.justice.gov/atr and at the Office of
the Clerk of the United States District Court for the Middle District
of North Carolina. Copies of these materials may be obtained from the
Antitrust Division upon request and payment of the copying fee set by
Department of Justice regulations.
Public comment is invited within 60 days of the date of this
notice. Such comments, including the name of the submitter, and
responses thereto, will be posted on the Antitrust Division's website,
filed with the Court, and, under certain circumstances, published in
the Federal Register. Comments should be submitted in English and
directed to Danielle Hauck, Acting Chief, Technology and Digital
Platforms Section, Antitrust Division, Department of Justice, 450 Fifth
Street NW, Suite 7100, Washington, DC 20530 (email address: [email protected]).
Suzanne Morris,
Deputy Director Civil Enforcement Operations, Antitrust Division.
In The United States District Court the Middle District of North
Carolina
UNITED STATES OF AMERICA, U.S. Department of Justice, Antitrust
Division, 950 Pennsylvania Avenue NW, Washington, DC 20530; STATE OF
NORTH CAROLINA, 114 W Edenton Street, Raleigh, NC 27603; STATE OF
CALIFORNIA, 300 South Spring Street, Suite 1702, Los Angeles, CA
90013; STATE OF COLORADO, 1300 Broadway, 7th Floor, Denver, CO
80203; STATE OF CONNECTICUT, 165 Capitol Avenue, Hartford, CT 06106;
STATE OF ILLINOIS, 115 S LaSalle St., Floor 23, Chicago, IL 60603;
COMMONWEALTH OF MASSACHUSETTS, One Ashburton Place, 18th Floor,
Boston, MA 02108; STATE OF MINNESOTA, 445 Minnesota Street, St.
Paul, MN 55101; STATE OF OREGON, 100 SW Market St., Portland, OR
97201; STATE OF TENNESSEE, P.O. Box 20207, Nashville, TN 37202 and
STATE OF WASHINGTON, 800 Fifth Avenue, Suite 2000, Seattle, WA
98104-3188, Plaintiffs, v. REALPAGE, Inc., 2201 Lakeside Blvd.,
Richardson, TX 75082; CAMDEN PROPERTY TRUST, 11 Greenway Plaza, Ste.
2400, Houston, TX 77046; CORTLAND MANAGEMENT, LLC, 3424 Peachtree
Rd., Ste. 300, Atlanta, GA 30326; CUSHMAN & WAKEFIELD, INC., 225 W
Wacker Dr., Ste. 3000, Chicago, IL 60606; GREYSTAR REAL ESTATE
PARTNERS, LLC, 465 Meeting St., Ste. 500, Charleston, SC 29403;
LIVCOR, LLC, 233 South Wacker Dr., Ste. 4700, Chicago, IL 60606;
PINNACLE PROPERTY MANAGEMENT SERVICES, LLC, 2401 Internet Blvd.,
Ste. 110, Frisco, TX 75034, and WILLOW BRIDGE PROPERTY COMPANY, LLC,
2000 McKinney Ave., Ste. 1100, Dallas, TX 75201, Defendants.
AMENDED COMPLAINT
Case No. 1:24-cv-00710-LCB-JLW
JURY TRIAL DEMANDED
Table of Contents
I. Introduction
II. RealPage's Revenue Management Software Is Fueled by Nonpublic,
Competitively Sensitive Information Shared By Landlords
A. Landlords Agree To Share Nonpublic, Competitively Sensitive
Transactional Data With RealPage for Use in Generating Competitors'
Pricing Recommendations
B. AIRM and YieldStar Users Agree With RealPage To Use the
Software To Align Pricing
C. RealPage's Transactional Data Is Fundamentally Different From
Other Data Available to Landlords
D. RealPage Revenue Management Software Uses Nonpublic,
Competitively Sensitive Data To Recommend Prices
1. AIRM and YieldStar Leverage Competitively Sensitive Data To
Generate Price Recommendations
(a) AIRM Model Training Relies on Competitively Sensitive Data
To Generate Learned Parameters
(b) AIRM and YieldStar Incorporate Competitors' Nonpublic Data
To Generate Floor Plan Price Recommendations
(c) AIRM and YieldStar Use Competitors' Nonpublic Data--
Including Data on Future Occupancy--To Determine Unit-Level Prices
2. LRO Relies Primarily on Landlords To Input Data on
Competitors
E. RealPage Uses Multiple Mechanisms To Increase Compliance With
Price Recommendations
1. AIRM and YieldStar Make It Easy To Accept Recommendations and
More Difficult and Time-Consuming To Decline
2. RealPage Pushes Clients To Adopt Auto-Accept Settings That
Automatically Approve Recommendations
3. RealPage Pricing Advisors Provide a ``Check and Balance'' on
Property Managers To Increase Acceptance of Recommendations
4. Pricing Recommendations Heavily Influence Landlords' Behavior
III. Coordination Among Competing Landlords Is a Feature of This
Industry
A. Rental Housing Is a Necessity for Millions of Americans
B. The Multifamily Property Industry Is Rife With Cooperation
Among Ostensible Competitors
1. At the Local Level, the Multifamily Property Industry
Comprises a Small Number of Large Landlords Managing Buildings With
Different Owners
2. Landlords Regularly Discuss Competitively Sensitive Topics
With Their Competitors and Swap Information
3. At RealPage User Group Meetings, Landlords Discuss
Competitively Sensitive Topics
C. RealPage Uses Nonpublic Information To Allow Landlords To
More Easily Compare Units on an Apples-to-Apples Basis
IV. RealPage Harms the Competitive Process and Renters By Entering
Into Unlawful Agreements With Landlords To Share and Exploit
Competitively Sensitive Data
A. AIRM and YieldStar Have the Purpose and Effect of Distorting
the Competitive Pricing of Apartments
B. AIRM and YieldStar Impose Multiple Guardrails Intended To
Artificially Keep Prices High or Minimize Price Decreases
C. AIRM and YieldStar Harm the Competitive Process by
Discouraging the Use of Discounts and Price Negotiations
D. AIRM and YieldStar Increase and Maintain Landlords' Pricing
Power by Using Competitors' Data To Manage Lease Expirations
E. No Procompetitive Benefit Justifies, Much Less Outweighs,
RealPage's Use of Competitively Sensitive Data To Align Competing
Landlords
V. RealPage Uses Landlords' Competitively Sensitive Data To Maintain
Its Monopoly and Exclude Commercial Revenue Management Software
Competitors
A. Landlords Are Drawn to RealPage Because of Access to
Nonpublic
[[Page 43071]]
Transactional Data That Is Used To Increase Landlords' Revenue
B. RealPage's Collection and Use of Competitively Sensitive Data
Excludes Competition in Commercial Revenue Management Software
VI. Relevant Markets
A. Conventional Multifamily Rental Housing Markets
1. Product Markets
(a) Conventional Multifamily Rentals Are Distinct From Other
Types of Multifamily Housing
(b) Single-Family Housing Is Not a Reasonable Substitute to
Multifamily Rentals
(c) Conventional Multifamily Rental Units With Different Bedroom
Counts Are Relevant Product Markets
2. Geographic Markets
(a) RealPage-Defined Submarkets Identify Relevant Geographic
Markets
(b) Core-Based Statistical Areas (CBSAs) Are Relevant Geographic
Markets
B. Commercial Revenue Management Software Market
1. Product Market
2. Geographic Market
VII. Jurisdiction, Venue, and Commerce
VIII. Violations Alleged
IX. Request for Relief
X. Demand for a Jury Trial
Appendix A: Submarkets
Appendix B: Submarkets By Bedroom Count
I. Introduction
1. Renters are entitled to the benefits of vigorous competition
among landlords. In prosperous times, that competition should limit
rent hikes; in harder times, competition should bring down rent, making
housing more affordable. RealPage has built a business out of
frustrating the natural forces of competition. In its own words, ``a
rising tide raises all ships.'' This is more than a marketing mantra.
RealPage sells software to landlords that collects nonpublic
information from competing landlords and uses that combined information
to make pricing recommendations. In its own words, RealPage ``helps
curb [landlords'] instincts to respond to down-market conditions by
either dramatically lowering price or by holding price when they are
losing velocity and/or occupancy. . . . Our tool [ ] ensures that
[landlords] are driving every possible opportunity to increase price
even in the most downward trending or unexpected conditions'' (emphases
added).
2. In fact, as RealPage's Vice President of Revenue Management
Advisory Services described, ``there is greater good in everybody
succeeding versus essentially trying to compete against one another in
a way that actually keeps the entire industry down'' (emphasis added).
As he put it, if enough landlords used RealPage's software, they would
``likely move in unison versus against each other'' (emphasis added).
To RealPage, the ``greater good'' is served by ensuring that otherwise
competing landlords rob Americans of the fruits of competition--lower
rental prices, better leasing terms, more concessions. At the same
time, the landlords enjoy the benefits of coordinated pricing among
competitors.
3. RealPage replaces competition with coordination. It substitutes
unity for rivalry. It subverts competition and the competitive process.
It does so openly and directly--and American renters are left paying
the price.
* * * * *
4. Americans spend more money on housing than any other expense. On
average, American households allocate more than one-third of their
monthly income to housing. Some purchase a home, while others choose
to, or must, rent. A family's selection of an apartment reflects a
complex set of values and criteria including comfort, safety, access to
schools, convenience, and critically, affordability. To ensure they
secure the greatest value for their needs, renters rely on robust and
fierce competition between landlords.
5. RealPage distorts that competition. Across America, RealPage
sells landlords commercial revenue management software. RealPage
develops, markets, and sells this software to enable landlords to
sidestep vigorous competition to win renters' business. Many of the
largest landlords in the United States, including Greystar, Camden,
Cortland, Cushman & Wakefield and Pinnacle, LivCor, and Willow Bridge
(collectively, Defendant Landlords), which would otherwise be competing
with each other, submit or have submitted on a daily basis their
competitively sensitive information to RealPage.\1\ This nonpublic,
material, and granular rental data includes, among other information, a
landlord's rental prices from executed leases, lease terms, and future
occupancy. RealPage collects a broad swath of such data from competing
landlords, combines it, and feeds it to an algorithm.
---------------------------------------------------------------------------
\1\ As used in this Complaint, the term ``landlord'' refers to a
variety of entities that are responsible for setting rents and other
lease terms at multifamily properties, including owners, operators,
and managers.
---------------------------------------------------------------------------
6. Based on this process and algorithm, RealPage provides daily,
near real-time pricing ``recommendations'' back to competing landlords.
These recommendations are based on the sensitive information of their
rivals. But these are more than just ``recommendations.'' Because, in
its own words, a ``rising tide raises all ships,'' RealPage monitors
compliance by landlords to its recommendations. RealPage also reviews
and weighs in on landlords' other policies, including trying to--and
often succeeding in--ending renter-friendly concessions (like a free
month's rent or waived fees) to attract or retain renters. A
significant number of landlords then effectively agree to outsource
their pricing function to RealPage with auto acceptance or other
settings such that RealPage as a middleman, and not the free market,
determines the price that a renter will pay. Competing landlords choose
to share their information with RealPage to ``eliminate the guessing
game'' about what their competitors are doing and ultimately take
instructions from RealPage on how to make business decisions to
``optimize''--or in reality, maximize--rents.
7. Each landlord pays steep fees to license RealPage's software.
RealPage's stated goals and value proposition are not a secret. Its
executives are blunt: They want landlords to ``avoid the race to the
bottom in down markets.'' Sometimes RealPage is even more direct,
acknowledging that its software is aimed at ``driving every possible
opportunity to increase price'' or observing that among landlords,
``there is a greater good in everybody succeeding versus essentially
trying to compete against one another in a way that actually keeps the
entire industry down.''
8. But that is not how the free market works. A free market
requires that landlords compete on the merits, not coordinate pricing.
Landlords should win renters by offering whatever combination of price
and quality they think is most attractive. For example, landlords could
lower rents or provide other financial concessions, like free months of
rent, or with investments in amenities like gyms, grilling areas, or
pools. Put differently, the fear of losing a renter to a competitor
should motivate rival landlords to compete vigorously.
9. RealPage's revenue management software ingests on a daily basis
nonpublic rental rates, future apartment availability, and changes in
competitors' rates and occupancy. As competitor-landlords increase
their rents, RealPage's software nudges other competing landlords to
increase their rents as well. RealPage calls this ``maximiz[ing]
opportunity[.]'' As RealPage explained to one landlord, by using
competitors' data, they can identify situations where ``we may have a
$50 increase instead of a $10 increase for that day.'' This is what
RealPage
[[Page 43072]]
encourages as ``stretch and pull pricing.''
10. RealPage allows landlords to manipulate, distort, and subvert
market forces. One landlord observed that RealPage's software ``can
eliminate the guessing game'' for landlords' pricing decisions.
Discussing a different RealPage product, another landlord said: ``I
always liked this product because your algorithm uses proprietary data
from other subscribers to suggest rents and term. That's classic price
fixing. . . .'' A third landlord explained, ``Our very first goal we
came out with immediately out of the gate is that we will not be the
reason any particular sub-market takes a rate dive. So for us our
strategy was to hold steady and to keep an eye on the communities
around us and our competitors.''
11. RealPage's scheme not only distorts competition to the
detriment of renters, but also allows it to reinforce its dominant
position in the market for commercial revenue management software. By
its own account, RealPage controls at least 80 percent of that market.
Its dominant position is protected by substantial data advantages due
to its massive reservoir of ill-gotten competitively sensitive
information from competing landlords. No other revenue management
company can match RealPage's access to landlords' nonpublic,
competitively sensitive rental data. This is why RealPage acknowledges
that it ``does not have any true competitors, mainly because our data
is based on real lease transaction data.'' RealPage's conduct is
predatory and exclusionary, which has allowed it to distort the market
opportunities for honest providers of revenue management software.
12. At bottom, RealPage is an algorithmic intermediary that
collects, combines, and exploits landlords' competitively sensitive
information. And in so doing, it enriches itself and compliant
landlords, including Defendant Landlords, at the expense of renters who
pay inflated prices and honest businesses that would otherwise compete.
13. The United States, and the States of North Carolina,
California, Colorado, Connecticut, Illinois, Minnesota, Oregon,
Tennessee, and Washington, and the Commonwealth of Massachusetts,
acting by and through their respective Attorneys General, bring this
action pursuant to Sections 1 and 2 of the Sherman Act to rid markets
of (i) RealPage's and Defendant Landlords' unlawful information-sharing
and pricing alignment schemes, and (ii) RealPage's illegal monopoly in
commercial revenue management software. In so doing, Plaintiffs seek to
restore the free market to deserving individuals, families, and honest
businesses.
II. RealPages's Revenue Management Software Is Fueled by Nonpublic,
Competitively Sensitive Information Shared by Landlords
14. RealPage dominates the market for commercial revenue management
software that landlords use to price apartments, controlling at least
80 percent of that market, according to its own estimates. RealPage
currently offers three revenue management systems to landlords:
YieldStar, AI Revenue Management (AIRM), and Lease Rent Options (LRO).
The company's main legacy software, YieldStar, is the product of three
acquisitions and subsequent internal development. Its successor, AIRM,
uses much of the same codebase as YieldStar, but RealPage claims that
AIRM's refined models and forecasting are more precise. RealPage
acquired its other revenue management software, LRO, in 2017. RealPage
has made plans to sunset both YieldStar and LRO by the end of 2024.
15. Competitively sensitive data collected from competing landlords
is a critical input to RealPage's revenue management software. AIRM and
YieldStar collect this data, such as rental applications, executed new
leases, renewal offers and acceptances, and forward-looking occupancy,
and use it to generate price recommendations for the competing
landlords. This information is among the most competitively sensitive
data a landlord maintains.
16. The exploitation of sensitive data from competing landlords is
central to RealPage's approach. As part of pitching its software to
landlords, RealPage highlights that its pricing algorithms use their
competitors' data sourced directly from ``lease transaction data.''
RealPage describes this nonpublic data from competitors as one of three
``building blocks of price'' in AIRM and YieldStar. Landlords thus
share their competitively sensitive information with RealPage with the
understanding that RealPage's software will use the data to generate
recommendations for rivals (and vice versa).
A. Landlords Agree To Share Nonpublic, Competitively Sensitive
Transactional Data With RealPage for Use in Generating Competitors'
Pricing Recommendations
17. RealPage amasses nonpublic, competitively sensitive data from
competing landlords through use of its pricing algorithms, other rental
property software, and thousands of monthly phone calls. The combined
troves of nonpublic, competitively sensitive data are much more
granular, sensitive, timely, and comprehensive than alternatives--and
far more detailed than any data publicly available to potential
renters. RealPage then uses this data in generating competitors'
pricing recommendations.
18. Data shared through YieldStar and AIRM. Each AIRM and YieldStar
client agrees to share detailed data with RealPage that are private,
updated nightly, and granular. The data includes lease-level
information on each unit's effective rent (rent net of discounts), rent
discounts, rent term, and lease status, as well as unit characteristics
such as layout and amenities. It also includes the number of potential
future renters who have visited a property or submitted a rental
application.
19. Landlords understand that AIRM and YieldStar use their data to
recommend prices not just for their own units, but also for
competitors. For example, a revenue management director at Greystar
testified that she understood that Greystar, and other competing
landlords who used AIRM or YieldStar, agreed with RealPage to share
their data, which was combined in a single data pool for use by
YieldStar and AIRM. An executive at Willow Bridge noted the advantages
to using YieldStar at a property if others in the property's
submarket--the small geographic area around the property--also used
YieldStar because ``the shared data between the models at different
communities can be a benefit in getting accurate transactional data on
a timely basis.''
20. Landlords agree to provide this information for use by their
competitors because they understand they will be able to leverage the
sensitive information of their rivals in turn. In its pitch to
prospective clients, RealPage describes AIRM's and YieldStar's access
to competitors' granular, transactional data as a meaningful tool that
it claims enables landlords to outperform their properties' competitors
by 2-7%. RealPage clients receive training that highlights the role of
competitors' transactional data in the price recommendation process.
21. Data Shared Through Other RealPage Products. AIRM and YieldStar
are not the only ways that RealPage shares nonpublic, competitively
sensitive information among landlords. RealPage obtains the same
confidential transactional data from landlords that license at least
three other programs: OneSite, Performance Analytics with
[[Page 43073]]
Benchmarking, and Business Intelligence.
22. OneSite is RealPage's property management software, which
operates as the central source of data for landlords' leasing activity.
Performance Analytics with Benchmarking allows landlords to compare the
performance of their properties and floor plans (e.g., a one-bedroom,
one-bathroom unit) to their competitors. Business Intelligence is a
data analytics tool that pulls data from a landlord's property
management software and other products.
23. Each landlord using RealPage's OneSite, Business Intelligence,
and Performance Analytics with Benchmarking products agrees to share
its proprietary data with RealPage and agrees that RealPage's revenue
management software can use the data to generate pricing
recommendations. The license agreements for these products specifically
identify the shared data, such as pricing information, as confidential,
nonpublic information. RealPage takes this deeply confidential
information and uses it to provide rent recommendations to competitors
of these clients.
24. These agreements grant RealPage access to confidential
information from over 16 million units across the country, including
many that do not use its revenue management products. With respect to
Performance Analytics with Benchmarking alone, a RealPage sales
representative told a prospective client that ``we have over 16 million
units of data coming from various source operating systems (PMS)
[property management software] into the PAB platform,'' making RealPage
the top choice for ``transactional data benchmarking.'' With properties
containing approximately 3 million units using AIRM and YieldStar,
these additional agreements meaningfully multiply the scale of the
transactional data used by AIRM and YieldStar. This gives RealPage
greater visibility, including into markets with less penetration by
AIRM and YieldStar, granting even initial AIRM and YieldStar adopters
in a new market the benefit of access to a significant amount of
nonpublic, competitively sensitive information.
25. Landlords understand that AIRM and YieldStar will use data from
these products. A revenue management director at Greystar explained
that RealPage ingests transactional data from several RealPage
products, besides AIRM and YieldStar, for use in revenue management. A
property owner requested information from Greystar on which competing
properties used revenue management software. In an internal response,
the Greystar director noted that RealPage has ``access to more
transactional history than anyone and [is] pulling data from anyone
using RealPage products which includes companies who manually price or
use other revenue management firms but leveraging their BI [Business
Intelligence] products.''
26. A revenue management executive at Willow Bridge asked RealPage
if other specific landlords were using RealPage's non-revenue
management products. The landlord's owner client was concerned about
the data available to YieldStar because competing properties were
unsophisticated and did not use revenue management. This executive
wanted to confirm that ``YieldStar will be able to leverage actual
transactional data behind the scenes and not just look at offered rents
for their comps.'' RealPage reminded the Willow Bridge executive that
RealPage collected transactional data for all users of OneSite,
Business Intelligence, and Performance Analytics with Benchmarking, and
reassured the executive that YieldStar had ample transactional and
survey data for that area.
27. Calling Landlords. RealPage has an additional, complementary
product called Market Analytics. Market Analytics compiles data from
over 50,000 monthly phone calls that RealPage makes to landlords across
the country. On these calls RealPage collects nonpublic, competitively
sensitive information by floor plan on occupancy rates, effective
rents, and concessions, as well as information on the owner, management
company, and any revenue management software used at the property.
These market surveys cover over 11 million units and approximately
52,000 properties. Landlords, including but not limited to those that
use AIRM, YieldStar, or other RealPage products, knowingly share this
nonpublic information with RealPage.
B. AIRM and YieldStar Users Agree With RealPage To Use the Software To
Align Pricing
28. In addition to agreeing to share nonpublic, competitively
sensitive data with RealPage, each AIRM and YieldStar licensee agrees
with RealPage to use the AIRM or YieldStar pricing software as RealPage
designed it.\2\ Landlords are expected to review daily AIRM or
YieldStar floor plan price recommendations and use the programs to set
scheduled floor plan rents or even unit-level prices.
---------------------------------------------------------------------------
\2\ Defendants Camden, Cushman & Wakefield and Pinnacle,
Greystar, LivCor, and Willow Bridge were active beta testers for
AIRM and provided feedback to RealPage during the AIRM design
process.
---------------------------------------------------------------------------
29. While landlords may not accept every price recommendation, they
use AIRM or YieldStar as their pricing software, regularly review AIRM
or YieldStar floor plan recommendations, use AIRM or YieldStar to set a
scheduled floor plan rent, and use AIRM or YieldStar to set unit-level
prices.
30. Landlords who use AIRM and YieldStar know that others are using
the same software. Some landlords track which revenue management
software their competitors use, including by contacting competing
properties directly and exchanging nonpublic information. Other
landlords, including prospective AIRM and YieldStar users, ask RealPage
whether there are existing AIRM and YieldStar users nearby before they
themselves license the products.
31. An executive at Willow Bridge, for example, explained to her
team how she would learn from RealPage data or from a property's
website whether a property used revenue management. This information is
important because properties that use revenue management tend to update
prices much more frequently, and so a landlord will react differently
to those price changes if it knows the competitor is using revenue
management.
32. RealPage frequently tells prospective and current clients that
a ``rising tide raises all ships.'' A RealPage revenue management vice
president explained that this phrase means that ``there is greater good
in everybody succeeding versus essentially trying to compete against
one another in a way that actually keeps the industry down.'' This
rising tide lifts all landlords, including but not limited to AIRM and
YieldStar users.
33. In using AIRM and YieldStar, landlords expect this pricing
alignment and use RealPage software in part for this reason. One
landlord echoed the RealPage executive, using the phrase ``a rising
tide rises [sic] all ships'' to explain that AIRM would move prices in
a ``similar manner'' to how the top and bottom of the market move.
Elsewhere that same landlord noted that ``if everyone in the market is
doing well and everyone in the market has [sic] is having the rates go
up, so should ours, right?'' An employee at Willow Bridge referenced
RealPage's use of the phrase ``a rising tide raises all ships'' to
explain how AIRM would provide price recommendations that amplify
market trends. Multiple landlords have expressed their preference that
their competitors use YieldStar and AIRM because widespread use would
benefit
[[Page 43074]]
them all. An executive of one landlord (which itself uses YieldStar and
AIRM) said in a 2021 earnings call that more sophisticated, ``high-
quality competition'' was better for that landlord when ``they all use
revenue management. They are all smart. They raised rents when they
should.'' RealPage highlighted in promotional materials the sentiments
of another landlord who noted, ``It actually gives me chills to think
about what a disadvantage we'd be at if we hadn't adopted YieldStar,
knowing others are using it.''
C. RealPage's Transactional Data Is Fundamentally Different From Other
Data Available to Landlords
34. The data that RealPage uses and supplies is unique relative to
public data available to landlords on listing or property websites. As
compared to public data, RealPage data is much more granular, covers a
broader array of business information, and includes competitively
sensitive data across several dimensions. For example:
Information on Actual Transactions. RealPage's data
include, for each lease, the unit, floor plan, listed rent, final
transacted lease price (including any discounts), and lease term.
Renewals. RealPage's data include the same information for
lease renewals. Information on renewals is not listed publicly--not
even asking rents--leaving a significant blind spot for landlords not
using RealPage.
Time Span. AIRM and YieldStar have access to current and
historical lease data, from the previous day and going back two to
three years.
Future Demand. The shared data further includes
information on tenant demand, including detailed information on
inquiries and applications by potential future tenants.
Accuracy. Landlords have greater assurance of the accuracy
of the data because it comes directly from the landlords' own
databases.
Coverage. The RealPage data covers millions of units from
users of its revenue management software and other products.
35. RealPage touts how its data is different. As one RealPage pitch
deck put it, ``we have [the] most data and the best data.'' And the
``[q]uality of data is best in class given that it is `lease
transaction data'--this provides insight into performance data from
actual signed leases, both new and renewal, net effective of
concessions.'' Another noted that without YieldStar ``you'll be pricing
your renewals in the dark without insight into actual lease transaction
data that YS uses to help you make pricing decisions. This is critical
to price renewals right[,] especially in a downturn.''
36. Access to this data proves important in winning over revenue
management clients, including skeptical ones. One RealPage senior
manager noted that a ``highly suspicious CFO'' was won over in part by
YieldStar's ``lease transaction data'' that allowed his company to
``achieve what his people couldn't achieve on their own.''
37. One landlord explained the benefits of YieldStar to its owner
clients by calling the use of competitors' transactional data a ``game
changer! We have 100% truth on [competitors'] activity powering
YieldStar recommendations.''
38. Another landlord's internal training presentation on YieldStar
highlighted the importance of having access to competitors'
transactional data:
[GRAPHIC] [TIFF OMITTED] TN05SE25.001
[[Page 43075]]
D. RealPage Revenue Management Software Uses Nonpublic, Competitively
Sensitive Data To Recommend Prices
39. AIRM and YieldStar are built upon similar code and leverage
competitive data in similar ways. LRO, on the other hand, was
originally developed outside of RealPage and takes a different
approach.
1. AIRM and YieldStar Leverage Competitively Sensitive Data To Generate
Price Recommendations
40. AIRM uses competitors' nonpublic, transactional data in three
separate stages of the pricing process: (1) model training, (2) floor
plan price recommendations, and (3) unit-level prices. YieldStar uses
competitors' nonpublic, transactional data in stages two and three of
its process.
(a) AIRM Model Training Relies on Competitively Sensitive Data To
Generate Learned Parameters
41. In the first stage, RealPage trains its AIRM models using
nonpublic data from OneSite and other property management software,
totaling millions of executed lease transactions, new lead
applications, renewal applications, and guest cards filled out by
visiting potential tenants. This data is run through a machine learning
model to generate learned parameters for supply and demand models that
are then used for all AIRM clients across the country. Like the
coefficients in a regression model, the learned parameters are applied
to the data of a landlord's specific property, and to the data of its
competitors, when AIRM makes pricing recommendations. RealPage
generally retrains the models three to four times per year using
updated nonpublic data.
(b) AIRM and YieldStar Incorporate Competitors' Nonpublic Data To
Generate Floor Plan Price Recommendations
42. In the second stage AIRM or YieldStar provides a price
recommendation for every floor plan of a given property. A floor plan
is a grouping of units that share similar characteristics, such as the
number of bedrooms and bathrooms and square footage. Landlords define
the floor plans in their buildings--for example, a large apartment
building might have separate sets of floor plans for studios, one-
bedroom, and two-bedroom apartments. As discussed below, AIRM and
YieldStar use competitors' nonpublic, transactional data in nearly
every step of setting a recommended floor plan price, including
identifying peer properties, forecasting occupancy and leasing,
increasing rents to match competitors' changes, and determining the
magnitude of price changes.
43. Identifying Peers. First, AIRM and YieldStar use confidential
transaction data to identify a property's peer properties, which
include close competitors. In selecting peer properties, RealPage's
algorithm generally looks for properties with similar floor plans,
within close geographic proximity, and with similar effective rents
over time. AIRM or YieldStar clients may review the list of peer
properties and request that RealPage add or remove specific properties.
44. AIRM or YieldStar then uses the nonpublic data from
competitors' executed leases to generate a market range chart for each
floor plan. This chart identifies a ``smoothed'' market minimum
effective rent and market maximum effective rent. The market minimum is
a hard floor. AIRM and YieldStar will not recommend a rent below the
market minimum. On the other hand, the market maximum is a ``soft
ceiling,'' and the programs will recommend prices above the ceiling.
45. The client has access to the market range chart within the AIRM
and YieldStar interfaces. As shown below, for each floor plan the
client can see the smoothed market minimum and market maximum and where
the client's own floor plan sits within the market range.
[GRAPHIC] [TIFF OMITTED] TN05SE25.002
[[Page 43076]]
46. Forecasting Occupancy and Leasing. Every night, for each
participating property, AIRM applies the model's learned parameters to
that property's internal transactional data to forecast the number of
expected vacancies and expected lease applications for a certain period
into the future. AIRM may also use competitors' data to adjust the
projected supply.
47. AIRM or YieldStar then determines whether actual leasing for a
floor plan is on track to meet predicted leasing. To do so, it creates
a forecast of the number of leases over time, using nonpublic lease and
application data from the subject property, and potentially from so-
called surrogate properties (similar properties in the surrounding
area).\3\ When there is an imbalance between a property's actual and
forecasted leasing, it recommends a price change.
---------------------------------------------------------------------------
\3\ If there is insufficient historical data for a particular
building, or floor plan within that building, RealPage will use data
from what it calls a ``surrogate property,'' which is the
confidential transactional data from another property with
characteristics similar to the subject property.
---------------------------------------------------------------------------
48. Changing Rents to Match Competitors. Even when a property's
supply and demand are balanced, RealPage's software will still
recommend a price change, based on competitors' nonpublic data, when it
determines that the market is moving. For example, if the minimum and
maximum of the competing floor plans' effective rents increase, it will
recommend a price increase to maintain the floor plan's market position
(its price position relative to its competitors).
49. Determining Magnitude of Price Changes. Once AIRM or YieldStar
has determined that it will recommend a price increase or a price
decrease, it again uses competitors' transactional data to determine
how much the price should move and provide a floor plan price
recommendation. It uses nonpublic transactional data from peer
properties, in addition to data from the subject property and surrogate
properties, to generate a market response curve--analogous to a market
demand curve--for every floor plan. This demand curve provides an
estimate of how demand for particular apartments would change in
response to changes in rents, a measure that RealPage calls elasticity.
In other words, it uses competitors' nonpublic transactional data to
calculate how many leases the property will likely gain or lose for a
particular floor plan, for every price point along the curve. Using
this data, AIRM or YieldStar can determine how much the price can
increase and still achieve the target number of leases, or by how
little price can decrease to maintain a target occupancy.
50. RealPage describes elasticity as a pivotal input into balancing
supply and demand and, therefore, price.
51. The use of surrogate properties in this pricing process has the
potential to push convergence on price even further. As two properties'
surrogate sets become closer--and therefore their respective demand
curves become more similar--AIRM and YieldStar will generate
increasingly similar prices for the two properties. And the use of
surrogates is common. One of the largest landlords in the country, for
example, uses surrogates at over 80% of its properties.
52. This process repeats for every floor plan in the client's
property, every night. A new floor plan price recommendation is
generated daily.
(c) AIRM and YieldStar Use Competitors' Nonpublic Data--Including Data
on Future Occupancy--To Determine Unit-Level Prices
53. A property manager at the landlord reviews each floor plan
recommendation daily and enters the floor plan price. AIRM and
YieldStar then use the floor plan price to generate prices for every
unit within the floor plan. The unit price is shown in a pricing
matrix, which provides the price for each combination of start date and
lease term. To generate the price for an individual unit, the floor
plan price is adjusted to account for unit-specific factors such as
amenities (e.g., a desirable view, the floor level, or an in-unit
washer and dryer), staleness (i.e., how long that specific unit has
been vacant), and the timing of lease expirations. AIRM and YieldStar
again use competitors' nonpublic data during this step in at least two
ways.
54. First, AIRM and YieldStar use data on competitors' supply of
multifamily housing to adjust recommendations to limit ``exposure''
with a feature called lease expiration management. Exposure refers to
the number of units that are available for lease. Managing lease
expirations is an important element of revenue management software. If
too many leases expire and the corresponding units become available at
the same time, supply increases and rents for those units will tend to
drop. This process will also tend to repeat itself as the same units
will become available at the same time a year later for leases with a
standard twelve-month term.
55. The objective of expiration management is to smooth out this
exposure so that landlords, as explained by one RealPage employee,
``remain in a position of pricing power.'' For example, if AIRM or
YieldStar sees that a large number of units will likely be available in
twelve months, it will increase the price recommendation for a twelve-
month lease relative to price recommendations for leases of other
terms, such as 11 months or 13 months, in order to nudge potential
renters to accept those terms. Expiration management can only raise
prices--AIRM does not lower a unit's price if the lease term would fall
in an underexposed period.
56. This calculation does not rely only on the predicted future
supply for the client's property. For any landlord who uses a ``market
seasonality'' setting, AIRM and YieldStar also rely on competitors'
transactional data and the supply for those competitors--including the
supply of competitors' existing leases that expire in the future. AIRM
and YieldStar thus work to manage lease expirations for the client's
units based on how competitors' supply will change. RealPage strongly
recommends to landlords that they use market seasonality.
57. The use of competitors' nonpublic data in expiration management
to fill out the pricing matrix occurs regardless of whether the
landlord accepts the AIRM or YieldStar recommendation. Thus, even if a
landlord were to override every price recommendation, its rental prices
would still be influenced by nonpublic information about its
competitors' supply.
58. Second, AIRM and YieldStar include an amenity optimization
feature. By pricing specific amenities within units, landlords can
avoid making wholesale pricing changes to a floor plan if a specific
unit fails to lease. Within the amenity analysis, AIRM and YieldStar
provide market values for specific amenities to landlords, allowing
them to compare their perceived value of an amenity with the nonpublic
valuation of their competitors. The peer data include the market
minimum and maximum value for specific amenities.
2. LRO Relies Primarily on Landlords To Input Data on Competitors
59. RealPage's LRO also provides pricing recommendations to users.
Each week, LRO users manually input competitor information into the
system that they have obtained from public websites or more
questionable means, such as communicating directly with their
competitors.
60. A small number of LRO users subscribe to a feature called
AutoComp. With this feature, RealPage provides
[[Page 43077]]
information on competitors' rents, traffic, and occupancy. This
information comes from market surveys that RealPage compiles using call
centers to call competitor properties. Landlords may use LRO without
using AutoComp.
E. RealPage Uses Multiple Mechanisms To Increase Compliance With Price
Recommendations
61. AIRM and YieldStar provide daily price recommendations.
RealPage has taken multiple steps to increase compliance with AIRM and
YieldStar price recommendations. It designed AIRM and YieldStar to make
it much easier to accept recommendations than to decline them. It built
an auto-accept function and pushes clients to adopt it and increase its
role. And its pricing advisors encourage landlords to follow AIRM and
YieldStar pricing recommendations. Among their duties, pricing advisors
review any request to override a price recommendation.
1. AIRM and YieldStar Make It Easy To Accept Recommendations and More
Difficult and Time-Consuming To Decline
62. Every morning, the landlord's property manager chooses whether
to accept the floor plan price recommendation, keep the previous day's
rent, or override the recommendation. These options are the same for
new leases and renewal leases. RealPage makes it easier and faster for
a client to accept a recommendation than to decline it. When accepting
recommendations, the manager can choose to do a bulk acceptance--she
can accept all or multiple floor plan recommendations at once. But she
cannot do the same when overriding, or rejecting, the recommendation.
63. Instead, for every recommendation that she does not accept--
whether overriding or keeping the previous day's rent--the property
manager must provide ``specific business commentary'' for diverging
from the recommendation. This justification, RealPage instructs, should
not be a mere preference for another price but must be based on a
factor that the model cannot account for, such as local construction or
renovations occurring in the building. It must be a ``strong sound
business minded approach.''
64. The property manager knows that these recommendation rejections
and accompanying justifications will be sent to a RealPage pricing
advisor.\4\ If the pricing advisor disagrees with the rejection or
justification, the disagreement is escalated for resolution to a
landlord's regional manager, who typically supervises the property
manager.
---------------------------------------------------------------------------
\4\ Some clients have internal revenue managers that are
certified by RealPage. For those clients who have internalized the
revenue management function, recommendation rejections may be routed
to the internal revenue manager rather than a RealPage pricing
advisor.
---------------------------------------------------------------------------
65. As one client who complained to RealPage explained, RealPage's
design is ``trying to persuade [clients] to take the recommendations
(almost like we made it hard to do anything but).''
2. RealPage Pushes Clients To Adopt Auto-Accept Settings That
Automatically Approve Recommendations
66. AIRM and YieldStar each include auto-accept functions. This
functionality automatically accepts price recommendations falling
within certain parameters. By default, AIRM and YieldStar set auto-
accept parameters of a 3% daily change and an 8% weekly change. The
landlord can change these parameters, disable or enable auto-accept,
and even enable partial auto-accept. With partial auto-accept, if the
recommendation exceeds the auto-accept parameters, the recommendation
is accepted as far as the parameter permits. For example, if the auto-
accept daily change limit is 4% and the price recommendation is 5%,
using partial auto-accept will result in an increase of 4%. By enabling
auto-accept, a landlord functionally delegates pricing authority to
RealPage (within the bounds of the daily and weekly limits).
67. As part of the onboarding process, internal RealPage guidance
states, ``AUTO ACCEPT should be confirmed as `on' with parameters in
place.'' Internal AIRM training explained that RealPage wanted to
``widen auto accept parameters'' by introducing the feature and then
``creating enough trust so that over time we have client[s] that are
willing to let auto accept run with very wide parameters . . . AKA--
accept all recommendations.'' RealPage trains pricing advisors to have
an ``accountability conversation'' or a ``refresher on short term vs
long term goals'' for clients that show less tolerance for increasing
auto-accept parameters.
68. Even if a landlord does not want to use auto-accept, RealPage
trains its advisors to convince the landlord to turn it on with 0%
limits--a setting whereby auto-accept will never accept price changes.
The reason? So that it is no longer a question of whether the client
turns on auto-accept, but only a matter of convincing them to widen the
parameters and further delegate pricing decisions. RealPage instructs
its advisors on best practices: ``[I]f a partner is not ready to use
auto acceptance, are they ready to use revenue management?''
3. RealPage Pricing Advisors Provide a ``Check and Balance'' on
Property Managers To Increase Acceptance of Recommendations
69. RealPage offers landlords pricing advisory services. Landlords
typically have an assigned pricing advisor, unless the client has
internal revenue managers that were certified by RealPage. Pricing
advisors play an important role in the daily review of pricing
recommendations. Landlords' property managers are asked to review
recommendations every morning by 9:30 a.m. After their review, a
pricing advisor accepts agreed-upon pricing within an hour and
escalates any disputes to the landlord's regional manager.
70. If a property manager disagrees with the direction of a
recommended price change--e.g., the manager wants to implement a price
decrease when the model recommends a price increase--the RealPage
pricing advisor escalates the dispute to the manager's superior. As a
pricing advisor manager explained in a client training, the advisor
would ``stop the process and reach out to our partners''--the property
manager's supervisors--to ``talk about this further.'' The advisors,
the manager elaborated, are part of a system of ``checks and
balances.'' The client confirmed the value of this system to stop
property managers from acting on emotions, which could limit RealPage's
influence on their pricing.
71. Beyond the daily interactions between pricing advisors and
their own property managers, clients agree to make meaningful changes
when they use RealPage's pricing advisory services. Under the
specifications for this service, clients agree to use AIRM or YieldStar
exclusively to give quotes to potential renters, further tying
landlords' pricing decisions to RealPage's software. Clients also agree
to change their commission programs for leasing agents to ``ensure
these programs motivate sales behavior that is consistent with the
objectives of revenue growth.'' And clients further agree to revenue
growth as the official metric to evaluate AIRM and YieldStar, as
opposed to occupancy rates.
72. RealPage imposes additional requirements on landlords who want
to use internal or in-house revenue management advisors with YieldStar
or AIRM (rather than use RealPage pricing advisors). RealPage requires
these
[[Page 43078]]
landlords' employees go through RealPage certification. Certification
is a multiday course in which landlords are trained--at times in the
same session--on AIRM and YieldStar use and best practices, according
to RealPage. Certification includes observing and leading pricing calls
with property managers and passing a written exam. This certification
program facilitates the landlords' agreements with RealPage to align
pricing by ensuring that landlords' internal revenue managers are
trained and tested to use AIRM and YieldStar in the same way.
4. Pricing Recommendations Heavily Influence Landlords' Behavior
73. RealPage defines an acceptance as where the final floor plan
price is within 1% of the recommended floor plan price. According to
that definition, the average acceptance rate across all landlords
nationally for new leases between January 2017 and June 2023 is between
40-50%. But RealPage itself recognizes that acceptance rates are not
necessarily the best measure of its influence; one employee explained
that the spread between a floor plan recommendation and the final
scheduled floor plan price is more useful for measuring model
adoption--and therefore influence--than the binary accept/reject
decision that the RealPage-defined acceptance rate reflects. Widening
the definition of acceptance even slightly to account for partial
acceptances illustrates the influence of recommendations: nearly 60% of
final floor plan prices are within 2.5% of RealPage's recommendation,
and more than 85% are within 5% of RealPage's recommendation.
74. RealPage's preferred measure of acceptance understates the
influence of RealPage's price recommendations and the effect of
competitors' data. AIRM and YieldStar use competitors' nonpublic
transactional data to adjust unit-level pricing, after a floor plan
recommendation has been accepted or rejected. RealPage's metric does
not capture the cumulative effect of rate acceptances over time. Nor do
they capture when a client is influenced by and partially accepts a
recommendation.
III. Coordination Among Competing Landlords Is a Feature of This
Industry
75. Several characteristics of apartment-rental markets make it
easier for landlords to coordinate with, or accommodate, each other.
Rental housing is a necessity for many Americans, meaning that demand
is inelastic--that is, changes in rent produce relatively small changes
in the number of renters. There is significant concentration among
landlords in local markets, and these landlords engage in widespread,
regular communications with one another. And RealPage makes rental
units more comparable to each other in AIRM and YieldStar, allowing
landlords to track one another more easily. These industry
characteristics exacerbate the harm to the competitive process--and
ultimately to renters--from the exchange of nonpublic, competitively
sensitive data through RealPage and the use of the AIRM and YieldStar
models.
A. Rental Housing Is a Necessity for Millions of Americans
76. Shelter is a basic, foundational necessity of life. And for
tens of millions of Americans, conventional multifamily apartment
buildings are the only reasonable option for much of their lives. Many
renters cannot afford the significant down payment needed to purchase a
single-family home, among other requirements.
77. Demand for apartments is relatively inelastic. Rising rents
have disproportionately affected low-income residents: The percentage
of income spent on rent for Americans without a college degree
increased from 30% in 2000 to 42% in 2017. In 2021, the proportion of
severely burdened households--households spending more than half of
their income on gross rent--was 25%, or approximately 10.4 million
households, an increase in approximately 1 million households since
2019. By 2022, this number increased to 12.1 million households. For
college graduates, the percentage of income spent on rent increased
from 26% to 34% from 2000 to 2017.
B. The Multifamily Property Industry Is Rife With Cooperation Among
Ostensible Competitors
78. Within particular metropolitan areas and neighborhoods, the
multifamily property industry is concentrated and replete with
competitively sensitive discussions among ostensible competitors.
Landlords have agreed with one another to share nonpublic, sensitive
information, both indirectly through RealPage software and directly
outside of RealPage's software. RealPage facilitates some of these
discussions, while others are made directly between competing
landlords. These discussions supplement and reinforce the indirect
information sharing among landlords that occurs through AIRM and
YieldStar. As a result of this coordination, RealPage's pricing
algorithms are even more likely to restrain, rather than promote,
competition.
1. At the Local Level, the Multifamily Property Industry Comprises a
Small Number of Large Landlords Managing Buildings With Different
Owners
79. In 595 zip codes with at least 1,000 total multifamily units
across 125 core-based statistical areas, five or fewer landlords manage
more than 50% of the multifamily units. Within the submarkets alleged
in this complaint, there are at least 214 zip codes, each with at least
1,000 total multifamily units, in which five or fewer landlords manage
more than half of those units. Similarly, within the ten core-based
statistical areas alleged in the complaint, there are 144 zip codes,
each with at least 1,000 total multifamily units, in which five or
fewer landlords manage more than half of those units.
80. The same landlord often oversees nearby properties with
different owners. In at least 502 zip codes, at least one landlord
using AIRM or YieldStar oversees properties with different owners.
81. There is also overlap among RealPage pricing advisor
assignments. In at least 683 zip codes, within 96 core-based
statistical areas, a RealPage pricing advisor has responsibility for
properties managed by different landlords. RealPage takes no steps to
avoid assigning the same pricing advisor to properties with different
owners, even if those properties compete with each other or are
RealPage-mapped competitors.
2. Landlords Regularly Discuss Competitively Sensitive Topics With
Their Competitors and Swap Information
82. Landlords regularly solicit and obtain nonpublic information
about inquiries by prospective renters, occupancy, and rents from their
direct competitors. Although this information is not as accurate or
thorough as the transactional-level data shared with AIRM and
YieldStar, it is nonetheless sensitive competitive information.
83. Landlords collect this information through a variety of means,
including weekly phone calls, emails, and in-person visits. Some
landlords also share information on their local geographic markets
through shared Google Drive documents. One RealPage employee explained
to his colleagues, reflecting on his former time working at a landlord,
that these weekly inquiries ``required cooperation among the
comp[etitor]s but wasn't hard to get that.'' In June 2023, a senior
director at Cushman & Wakefield admitted that
[[Page 43079]]
``this practice has been prevalent in our industry for a long time.''
84. Landlords not only knew of these so-called ``market surveys,''
but expected their property managers to participate. As a manager of
Cushman & Wakefield's revenue management department explained, ``we
have always expected our properties to continue doing a traditional
market survey[,]'' which ``gives us insight into the very specific
handful of competitors closest to the subject property.''
85. At a February 2020 industry event, representatives from Cushman
& Wakefield and two other landlords shared tips on collecting
information on concessions and net effective rents from competitors.
The suggestions included bi-weekly and monthly meetings with
competitors, sponsored ``cocktail hours for regional competitors to
share info and build relationships and rapport,'' and using Google
Drive documents to share information on a weekly basis. Building
relationships with competitors to get accurate data was ``critical.''
The representatives cautioned that the collected data was used to make
``major decisions about pricing,'' so the landlord employees collecting
data should be trained accordingly to ask such questions as ``are you
seeing a slow down?'' and ``are you adjusting pricing?''
86. Some landlords engage in even more sensitive communications
about price, demand, and market conditions. These communications are
not isolated instances at a specific property. Rather, they are
conversations at the corporate revenue management level about
strategies and approaches to market conditions that apply to the
landlords' business across all markets.
87. For example, in January 2018, Willow Bridge's director of
revenue management reached out to Greystar's director of revenue
management and asked about Greystar's use of auto accept in YieldStar.
In response, Greystar's director provided Greystar's standard auto-
accept settings, including daily and weekly limits and for which days
of the week auto accept was used. The Greystar director, explaining why
she provided this information, testified that the Willow Bridge
director was a ``colleague,'' even though Willow Bridge was a
competitor to Greystar.
88. In March 2020, Cushman & Wakefield's director of revenue
management reached out to Willow Bridge's director of revenue
management. The Cushman & Wakefield director wanted to hold a call
among revenue management executives at multiple landlords to discuss
market conditions, use of YieldStar, and strategy plans. The Willow
Bridge director agreed and suggested a small number of landlords to
invite to keep the group ``tight.'' The directors agreed to reach out
to Greystar, as well as several other landlords.
89. Also in March 2020, a senior executive at Greystar obtained a
copy of Willow Bridge's sensitive strategic plans regarding the COVID-
19 pandemic. The plans included Willow Bridge's corporate protocols for
concessions, rent increases, and lease terms. The plans recommended
that property managers work closely with YieldStar and LRO to preserve
rent integrity. The Greystar executive forwarded Willow Bridge's plans
to executives at Cushman & Wakefield and another landlord. All four
landlords compete with one another.
90. In September 2020, Camden's director of revenue management
reached out to Greystar's director of its internal revenue management
team. Camden asked Greystar--a direct competitor--what increases on
renewal pricing Greystar had seen in August and offered what it had
seen. Greystar's director replied with information not only on August
renewals, but also on how Greystar planned to approach pricing in the
upcoming quarter. Greystar's director further disclosed its practices
on accepting YieldStar rates and use of concessions. As the
conversation continued, the two competitors shared additional highly-
sensitive information on occupancy--including in specific markets--
demand, and the strategic use of concessions.
91. At the same time, Camden's director emailed a revenue
management executive at LivCor and asked how LivCor was faring on
raising renewal rates. He explained his request by noting that
Performance Analytics provided some good data, but it was ``hard to see
what our competitors are signing today.'' The two executives shared
information about their respective renewal increases. After the Camden
executive passed this information along internally, he continued his
outreach with several other landlords and with the LivCor executive--
who in the meantime had reached out to three other landlords about
their renewal rates. Camden's internal team decided to raise a renewal
cap to get to the same renewal gains as LivCor.
92. Camden's director received competitively sensitive information
from at least four competitors. Another senior executive at Camden
asked him to compile the information so it could be shared internally.
That executive noted the usefulness of the competitors' information and
the need to take advantage of the shared information while it was
fresh.
93. In June 2021, Willow Bridge's head of revenue management
emailed Greystar's revenue management director. She proposed
collaborating with Greystar to convince a client to move all of its
properties, including those managed by Willow Bridge and those managed
by Greystar, to AIRM. But she also noted that, in thinking about ``the
larger picture as well,'' it could be useful to ``coordinate with the
other companies that we often share business with'' to prepare to move
their clients to AIRM as well. Greystar responded favorably to
transitioning the joint client to AIRM.
94. In November 2021, a revenue management executive at LivCor
emailed an executive at Camden to propose a call to discuss Camden's
``renewal philosophy,'' for the purpose of informing how LivCor
calculated renewal increases. The two spoke that day. The following
day, another LivCor executive--who was included on the call--thanked
the Camden executive for the opportunity to ``connect on industry best
practices'' and asked another ``operational question'' about
implementing ``larger renewal increases.'' The executives exchanged
emails over the next few months, including discussing their respective
strategies on maximum increases to lease renewal prices. They shared
not only their increase limits in specific markets but also what price
increases they were able to achieve. For example, in April 2022, the
executive at LivCor reached out to Camden to share that ``my current
thinking (not sure it's right, just where my mind is at) is . . .
prices for almost everything are up 20%. Therefore, unless there is a
good reason not to, should we be increasing rates on rentable items by
20%?'' The Camden executive responded, ``I like your thinking.'' He
continued, ``Typically, we lean into the demand signals to inspire a
price increase . . . . I'm divided on whether the default increase
should be 20% or closer to the 10% . . . . Curious what your thoughts
are!?''
95. In September 2021, a property manager at Cortland explained to
a colleague that the manager had called two competitors and received
from them pricing information on two-bedroom and three-bedroom units.
The property manager asked for the information to decide how to act on
YieldStar's price recommendations.
96. Landlords also engage in group discussions with local and
national competitors about sensitive topics. For example, for a number
of months in
[[Page 43080]]
2020, dozens of ``high-level participants'' from competing landlords
participated in weekly ``multifamily leadership huddle''
videoconferences. The organizer informed participants that ``the goal
of the call is to share information about what our companies are doing,
share some collateral and resources,'' and then--perhaps recognizing
the problematic nature of these calls--he claimed that ``then we hang
up and make our own decisions.''
97. In one such call in April 2020 with over 100 attendees,
participants discussed a number of topics, including ``pricing and
renewal strategies.'' Several senior landlord executives, including a
Greystar senior managing director and a CEO of another landlord,
participated and shared their practices on new leases and renewals, use
of renter payment plans, and use of YieldStar and other revenue
management software. On a similar call in October 2020, participants
discussed current and forecast rent prices, renewal strategies, and use
of concessions. A Willow Bridge employee forwarded a colleague notes
from the call, and he specifically highlighted information about a
competitor's use of concessions.
98. These conversations among competing landlords have extended
from the national level to local markets across the country. For
example, in Minnesota, property managers from Cushman & Wakefield,
Greystar, and other landlords regularly discussed competitively
sensitive topics, including their future pricing. When a property
manager from Greystar remarked that another property manager had
declined to fully participate due to ``price fixing laws,'' the Cushman
& Wakefield property manager replied to Greystar, ``Hmm... Price fixing
laws huh? That's a new one! Well, I'm happy to keep sharing so ask
away. Hoping we can kick these concessions soon or at least only have
you guys be the only ones with big concessions! It's so frustrating to
have to offer so much.'' The property managers from Greystar and
Cushman & Wakefield continued to discuss competitively sensitive
topics. For example, in response to Greystar's tipoff that it had
reduced concessions and ``hop[ed] the Spring/Summer market allow us to
pull further back on concessions,'' the Cushman & Wakefield property
manager replied, ``That's great news and I love hearing about the
concessions being pulled back. We have done the same and hoping the
rest of the market follows suit.'' These communications between
RealPage users that are ostensibly competitors are examples of the
industry-wide coordination that magnifies the anticompetitive effects
of RealPage's software.
99. In addition to contacting each other directly, many landlords
also exchange information through other intermediaries. One vendor
offers a tool for landlords to exchange with one another nonpublic
information on concessions, net effective rents, inquiries and visits
by prospective renters, and occupancy that is pulled from each
landlord's property management software. Over 150 landlords nationally
have used this service, including Greystar, LivCor, and some of the
other largest landlords across the country. The vendor's CEO described
this as a ``quid pro quo or give to get'' arrangement among landlords
where ``if you share this data with me, I'll share the same data.'' A
RealPage employee noted that this vendor makes it ``quicker and easier
to get your market surveys.''
100. Some landlords use this direct exchange of competitively
sensitive information to update competitor rents within LRO--a practice
that RealPage is aware of and accepts.
101. Recently, under the scrutiny of antitrust lawsuits, some
landlords have adopted internal policies prohibiting ``call arounds''
and other direct sharing of competitively sensitive information with
direct competitors. But even assuming that their property managers
fully comply with these legally unenforceable internal policies, these
landlords continue to use RealPage's revenue management software.
3. At RealPage User Group Meetings, Landlords Discuss Competitively
Sensitive Topics
102. RealPage holds monthly ``user group'' meetings attended by
competing landlords that use RealPage's software. There are separate
user group meetings for LRO and for YieldStar and AIRM.\5\ One of
RealPage's stated purposes for the user groups is to ``to promote
communications between users.'' Attendees include a wide mix of
competing landlords. For example, the June 2022 YieldStar user group
included representatives from five of the largest property management
companies in the country, among a larger group.
---------------------------------------------------------------------------
\5\ RealPage previously held separate AIRM and YieldStar user
groups but combined them in 2023.
---------------------------------------------------------------------------
103. Recurring topics at the user group meetings include product
enhancements and an ``idea exchange'' on potential changes to the
products. The user group participants often vote on the proposals
discussed in the idea exchange. But discussions have covered
competitively sensitive topics, including managing lease expirations,
pricing amenities, the use of concessions, pricing strategies, and how
to manage properties during the COVID-19 pandemic. RealPage encouraged
landlords to use the user group meetings to discuss such topics in
their industry and set agendas for these meetings to aid them in doing
just that, remarking that ``[t]he user group is meant to be self-
governed to a degree and the clients should be leading it.'' These
RealPage-fostered discussions among competitors enhance and facilitate
the landlords' agreement with RealPage to use AIRM and YieldStar to
align pricing.
104. At an April 2020 YieldStar user group meeting, the
participants discussed strategies for handling the COVID-19 pandemic.
In the presentation, two RealPage employees and a landlord led a group
discussion of trends in rent payments and collections and provided five
strategic tips. One tip encouraged landlords to ``push for occupancy
but don't give away the farm (pricing).'' Another counseled landlords
to ``balance internal and external dynamics'' and, referring to the
nonpublic information used by YieldStar, to ``use transactional market
data for decision support and to know when you can be more aggressive''
in pushing higher rents. Invited attendees included representatives
from at least twelve landlords. At this meeting, Greystar and another
landlord shared information on their usage of payment plans with
tenants.
105. In May 2020, RealPage started a YieldStar user group meeting
by surveying them on concessions. RealPage asked landlords how many of
their properties offered concessions, whether concessions applied to
new leases or renewals, and the types of concessions offered (such as
discounts, gift cards, or other benefits). Invited attendees included
representatives of thirteen landlords.
106. In March 2021, the user group meeting included a discussion on
possible adjustments to how YieldStar calculated lease expiration
premiums. A RealPage executive shared that she liked the idea of adding
weekend premiums to incentivize prospective renters to move in during
the week, and commented that ``the rev[enue] potential would then scale
up.'' The LivCor representative responded in favor of weekend premiums,
and another user group member suggested adding the proposal to the user
group idea exchange. RealPage agreed to do so.
107. RealPage began its agenda for an April 2021 YieldStar user
group meeting with ``strategic insights'' from a
[[Page 43081]]
RealPage economist. This employee shared ``21 key strategic insights,''
including ``focus on renewals,'' ``be cautious with concessions,'' and
``drive up revenues--not just base rent.'' Specifically, he urged the
group to ``push up new and renewal pricing where demand [is] solid''
and warned against over-relying on concessions. They were instead to
``trust the science'' of YieldStar.
108. In May 2021, RealPage included a ``Back to Basics'' discussion
in a YieldStar user group meeting. This discussion covered ``returning
to renewal increases post-COVID'' and ``declining concessions,'' as
well as eviction moratoria and areas where acceptance rates were
``seeing significant uptick in past 6 months.'' The meeting group chat
is even more revealing. Over a period of approximately fifteen minutes,
representatives from fifteen landlords shared their plans for renewal
increases and their use of concessions. The questions were posed, ``At
what point do we go back to normal? I[f] we go back to normal[,] [i]s
it now? Is anyone seeing that the model is raising rent and are you
doing it?'' In response, these representatives made statements on
renewal increases such as ``increasing, back to normal,'' ``major rent
growth on the west coast,'' ``increasing the renewals,'' ``almost all
markets we are raising rents,'' ``actually raising more than before
covid at some,'' ``raising,'' and ``we are pushing to get back to
normal. Sending increases.'' A representative from LivCor stated,
``increasing renewals and pushing new lease rents.''
109. The user group members were similarly open about their
disinterest in concessions, signaling to each other that they do not
intend to offer them or would offer them less frequently. Their
pronouncements included ``no consessions [sic],'' ``no concessions,''
``considerably less concessions,'' ``less frequent and less
aggressive,'' ``no concessions except in markets with a lot of lease-
ups,'' and ``almost no concessions currently.'' A representative from
Willow Bridge noted concessions had ``gone away a LOT. People asking
for a free month on renewals and being denied, but still signing the
renewal.''
110. When the discussion turned to acceptance rates, a RealPage
employee stated that rates had ``pretty much gone back to pre-COVID.
Rate Acceptance has grown 11% over the past 6 months.'' A landlord
responded that they had ``seen our acceptance rate increase
tremendously.'' Another user group member explained to the group, for
``about \1/3\ of the communities I manage the [YieldStar] model was too
slow to respond, and we are pushing rates above market and above YS
rec[ommendation].'' A representative from Willow Bridge concluded,
``Are we deciding as a group to remove hesitation?:).''
111. The LivCor representative who attended this May 2021 meeting
testified that similar discussions happened numerous times during the
COVID-19 pandemic--specifically, the beginning of 2020 through the
middle of 2022. In these meetings, user group members discussed new and
renewal rent increases, concessions, and renewal strategies, as well as
other sensitive topics.
112. RealPage claims that this and other user group meetings were
not recorded.
113. The July 2021 YieldStar user group meeting, held at RealWorld
(a RealPage-hosted industry event), included a roundtable discussion
among competitors. One of the discussion topics? ``What is the one
thing you consistently consider outside of the model when accepting or
changing price and why?''
114. At the October 2021 YieldStar user group meeting, a RealPage
economist gave a presentation regarding the 2022 market outlook.
RealPage presented analyses on current occupancy and pricing, and on
expected occupancy and rent growth in 2022 by geographic regions.
115. At the July 2022 RealWorld YieldStar user group meeting,
RealPage hosted a ``roundtable discussion'' on market volatility and
its impact on how to use revenue management, unit amenities and their
impact on tenant rents, and best practices for conducting lease ups.\6\
---------------------------------------------------------------------------
\6\ A lease up is typically a pre-leasing period (such as with a
newly constructed property) where a landlord is seeking to reach a
certain, initial occupancy threshold.
---------------------------------------------------------------------------
116. RealPage recognized the sensitive nature of the information
shared at these meetings. Beginning in late 2022, after public
reporting about AIRM and YieldStar, RealPage added an antitrust
compliance statement in the user group presentations. Among other
directions, the statement instructed participants not to discuss
``confidential or competitively sensitive information,'' and then noted
that this included ``you or your competitors' prices or anything that
may affect prices, such as current or future pricing strategies, costs,
discounts, concessions or profit margins.'' But these were the very
topics of previous user group meetings, as described above, that
RealPage encouraged its users to discuss. And these are the very types
of nonpublic information that AIRM and YieldStar use to recommend and
determine prices.
117. Landlords frequently take advantage of RealPage user group
meeting invites to email each other directly. In August 2020, for
example, an employee of Cortland emailed a user group invitee list and
asked them to support a change to how YieldStar calculated the number
of leases needed. In response, an employee of a different landlord
agreed, adding that ``I also rely on comparing available units to
adj[usted] leases needed, to forecast leases, to gut check the pricing
recs. These data points are always a factor in my pricing decisions.''
C. RealPage Uses Nonpublic Information To Allow Landlords To More
Easily Compare Units on an Apples-to-Apples Basis
118. Renters typically search for a rental unit using certain key
criteria, including the number of bedrooms and the location.
Recognizing this market reality, RealPage enables landlords to more
easily compare unit prices. When picking a property's ``peer set,''
RealPage matches floorplans with the same number of bedrooms that are
geographically proximate. This makes it easier for landlords, through
AIRM and YieldStar, to track and respond to competitors' movements at
the floor plan level.
119. To account for amenities, RealPage instructs landlords to
identify amenities using standardized naming conventions so that
RealPage can use machine learning to group amenities together. RealPage
then provides the market value for specific amenities, allowing
landlords to more accurately identify and track how their competitors
value these amenities and adjust their own pricing accordingly. The
peer data include the market minimum and maximum value, as well as
market quartile values, for specific amenities.
IV. RealPage Harms the Competitive Process and Renters by Entereing
Into Unlawful Agreements With Landlords To Share and Exploit
Competitively Sensitive Data
120. AIRM's and YieldStar's use of nonpublic, competitively
sensitive data is likely to harm, and has harmed, the competitive
process and renters. AIRM and YieldStar distort the competitive process
by using nonpublic data to maximize pricing increases and minimize
pricing decreases. AIRM and YieldStar incorporate special rules, called
``guardrails,'' that override the
[[Page 43082]]
ordinary functioning of the algorithms in ways that tend to push rival
landlords' rental prices higher than would occur in a competitive
market. RealPage presses landlords to curtail ``concessions'' to
renters. And AIRM and YieldStar's ``lease expiration management''
features aim to sequence vacancies to maximize landlords' pricing
power.
A. AIRM and YieldStar Have the Purpose and Effect of Distorting the
Competitive Pricing of Apartments
121. As RealPage frequently trumpets to landlords, ``a rising tide
raises all ships.'' AIRM and YieldStar ensure that the `tide' flows
primarily one way--higher rental prices. In a hot market, AIRM and
YieldStar will recommend price increases to test what the market will
bear, while in a down market AIRM and YieldStar will, to the extent
possible, still increase or hold prices and minimize price decreases to
reach the target occupancy rate.
122. AIRM and YieldStar are designed to help landlords press
pricing beyond what they could otherwise achieve while reducing the
risk that other landlords would undercut them. A revenue manager at
Willow Bridge explained it succinctly: YieldStar is ``designed to
always test the top of the market whenever it feels it's safe to.'' By
using competitors' sensitive nonpublic data to generate elasticity
estimates, among other things, AIRM and YieldStar can recommend higher
price increases to extract more money from renters without losing an
additional lease. As RealPage explained to a YieldStar client in
training, this pricing elasticity measurement informs ``how far do we
stretch and pull pricing within the market.'' That, in turn, means that
``we may have a $50 increase instead of a $10 increase for that day.''
123. That insight, gleaned from competitors sharing sensitive,
transactional data with RealPage, which is in turn shared with
landlords through pricing recommendations, removes uncertainty and
competitive pressure that benefits renters. As one landlord put it,
these products ``eliminate the guessing game'' on rent.
124. As RealPage explains to its clients, AIRM and YieldStar reveal
``hidden yield.'' This extra yield or revenue is hidden in a
competitive market--a market in which competitors do not share
sensitive information with each other--because landlords ``can't see
the opportunity'' and ``fail to capture [the] full opportunity.''
125. AIRM and YieldStar disrupt the normal competitive bargaining
process between landlords and renters. They place landlords in a better
negotiating position vis-[agrave]-vis renters. Landlords using AIRM and
YieldStar know that these models recommend floor plan prices and price
units incorporating nonpublic data of their competitors, including
effective rents and occupancy rates, all of which allow landlords to
raise price with more certainty.
126. As landlords appreciate, AIRM and YieldStar use competitors'
nonpublic data to predict with more certainty the highest price that
the market will bear for a particular unit. A landlord is therefore
less likely to negotiate on price. Any potential negotiation instead
turns on lease term and move-in date, which AIRM and YieldStar adjust
the pricing for to avoid overexposure for the landlord in the future.
127. AIRM and YieldStar also encourage landlords to follow each
other in raising rents. When transactional data reveal that peers are
raising effective rents--particularly the highest and lowest
competitors for a given floor plan--AIRM and YieldStar follow with
recommendations to increase rental prices. This movement with the
market is ingrained in the AIRM and YieldStar models; AIRM and
YieldStar will not recommend a floor plan price that falls below the
market minimum.
128. Accordingly, as adoption of AIRM and YieldStar increases among
peer competitors, the use of AIRM and YieldStar can push prices up
through a feedback effect. As peers move up, other AIRM or YieldStar
users may move up accordingly. This phenomenon, where participating
landlords ``likely move in unison versus against each other,'' a
RealPage executive testified, explains ``the rising tide.'' The same
executive saw evidence of this ``rising tide'' in 2020: When looking at
multiple peer sites using YieldStar, ``we started to see the trajectory
of performance and trends be eerily similar when comparing subject
sites and comp sets, thus showing that we are in fact `r[a]ising the
entire tide.' '' He acknowledged that YieldStar contributed to market
prices rising as a tide.
129. Landlords rely on competitors' data within AIRM and YieldStar
to determine their prices and how hard they need to try to be
competitive. A revenue management director at Greystar noted in an
internal AIRM deck that competitors' data is ``like the boundaries of
the street you are driving on.'' The director elaborated that ``the
competitive market range are [sic] the edges of the road, staying in
those boundaries are [sic] necessary to get you to the destination.''
130. Another landlord that used YieldStar told RealPage that within
a week of adopting YieldStar they started increasing their rents, and
within eleven months had raised rents more than 25% and eliminated
concessions. The landlord added that they were now pricing at the top
of their peers and, importantly, had ``brought the rest of the Comps
rents up with us.'' A RealPage executive responded internally that this
was a ``great case study that highlights performance before, during,
and a result of YS [YieldStar].''
131. A landlord explained in an internal presentation that because
YieldStar recommends floor plan pricing that moves with the market--a
market position--YieldStar would use competitors' data to inform ``how
competitive we need to be [e]ach [d]ay.''
[[Page 43083]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.003
132. AIRM uses machine learning to train models on competing
landlords' sensitive data. The parameters learned in this training are
then applied to each AIRM client.\7\ As a result, the model uses the
same method and learned parameters to generate price recommendations
from the relevant data for each landlord.
---------------------------------------------------------------------------
\7\ There are separate AI Supply models, and therefore
potentially different learned model parameters, for clients using
Yardi's property management software and clients using other
property management software. But within these two categories the
learned model parameters for the AI Supply models are the same.
---------------------------------------------------------------------------
133. This aligns and stabilizes prices in at least two ways. First,
it reduces volatility in how prices change, compared to a situation in
which each client sets prices independently. No longer do competitors
react in distinctive ways to changing market conditions as they would
in a market without access to competitors' transactional data. Instead,
AIRM price recommendations tend to standardize those reactions. This
leads to the second result: pricing recommendations, and consequently
pricing decisions, become more predictable and aligned among
competitors as each is using the same set of learned model parameters.
134. RealPage has even manipulated competitor mappings to increase
the likelihood that AIRM or YieldStar would recommend price increases.
For example, a prominent client asked why a subject property had mapped
peers located more than 100 miles away, in a different metropolitan
area, when there were satisfactory mapped competitors within five
miles. RealPage's response was that if these distant properties were
not mapped, the client's property would be at the top of the market and
it would be more difficult for AIRM to recommend price increases.
RealPage had originally mapped these distant properties to give the
model more room to recommend price increases for the client's property.
135. This dynamic exists not only in markets with growing demand,
but also so-called ``down markets,'' where demand is decreasing. In a
competitive market with a fixed supply (at least in the short run) of
housing units, a demand decrease would result in prices falling. But
AIRM and YieldStar resist price decreases in down markets as much as
possible while achieving targeted occupancy rates. RealPage told one
prospective AIRM client that the combination of ``AI and the robust
data in the RealPage ecosystem'' would allow the landlord to ``avoid
the race to the bottom in down markets.''
136. Using competitors' transactional data to calibrate and set the
bounds of its model enables YieldStar and AIRM to decrease prices as
little as possible in a down market. As one example, in 2023 a landlord
reached out to RealPage with concerns about price recommendations at a
property. Despite the property having too many vacancies and peer
properties decreasing in price, AIRM was recommending price increases,
frustrating the property owner. A senior RealPage executive responded
that the model was not lowering prices because ``there isn't much
elasticity between the recommended position and the current one'' and
``the model would recommend the highest possible position [i.e., price]
without affecting demand.''
137. RealPage succinctly summarized for landlords the effect of
using AIRM and YieldStar in down markets: it ``curbs [clients']
instincts to respond to down-market conditions by either dramatically
lowering price or by holding price when they are losing velocity and/or
occupancy.'' These tools instill pricing discipline in landlords,
curbing normal fully independent competitive reactions by substituting
them with interdependent decision-making (i.e., through the use of
pricing recommendations based on shared, competitively sensitive
information). These products ensure that clients are ``driving every
possible opportunity to increase price even in the most
[[Page 43084]]
downward trending or unexpected conditions.''
138. When one client wanted to cancel YieldStar, a RealPage
executive noted to colleagues that with cancelation the client would
lose ``our helping them mitigate damage during rent control and
covid.'' In particular, the client would lose ``us helping them rise
with the tide given their strategy.''
139. Landlords understand the sensitivity of the information being
shared and the likely anticompetitive effects. One potential client put
it succinctly to RealPage: ``I always liked this product [AIRM] because
your algorithm uses proprietary data from other subscribers to suggest
rents and term. That's classic price fixing . . . .''
140. Cushman & Wakefield recognized the anticompetitive potential
of sharing this level of detailed competitor data. When a property
owner asked for information on specific competitors, Cushman &
Wakefield's director of revenue management replied that the requested
tool, RealPage's Performance Analytics with Benchmarking, did not
provide information on specific competitors. The reason? Performance
Analytics with Benchmarking ``tracks transactional information
therefore due [to] the potential pricing collusion, it's anonymize[d]
by RealPage.'' Performance Analytics with Benchmarking draws from the
same transactional database as AIRM and YieldStar. And while AIRM and
YieldStar do not display the granular transactional data to the user,
AIRM and YieldStar see and use that data. The price recommendations are
based upon the very data that this client recognized could lead to
collusion.
141. Even RealPage employees selling LRO recognized the
anticompetitive harm from using competitors' transactional data to
recommend prices. In a 2018 training deck provided to clients, RealPage
explained, ``we often times get the question about if comps are on LRO,
can we just update the rents for you? Unfortunately, no, we can't. That
could be considered price collusion, and it's illegal.'' But this is
precisely what AIRM and YieldStar do.
B. AIRM and YieldStar Impose Multiple Guardrails Intended To
Artificially Keep Prices High or Minimize Price Decreases
142. Unsatisfied with relying merely on competitively sensitive
data to advantage landlords, RealPage created ``guardrails'' within
AIRM and YieldStar to force adjustments to the price recommendation.
But these guardrails serve as one-way ratchets that help landlords, not
renters, by increasing price recommendations or limiting a recommended
decrease. And each of these guardrails makes use of competitively
sensitive data that landlords agree to share with RealPage. These
guardrails have even spurred multiple landlords to tell RealPage that
AIRM and YieldStar are not dropping recommended rents as much as their
individual conditions, or even market conditions, would warrant.
143. Hard Floor. AIRM and YieldStar will not recommend a floor plan
price that falls below the smoothed market minimum effective rent. The
market minimum is a hard floor. AIRM and YieldStar thus explicitly
constrain floor plan price recommendations based on the prices of
competitors, using shared nonpublic information.
144. Revenue Protection Mode. RealPage created a ``revenue
protection'' mode that effectively lowers output to increase revenues.
Revenue protection activates when AIRM or YieldStar predict--using
calculations incorporating competitors' data--that demand is too low
for a landlord to meet its target occupancy. Rather than lowering the
price to stimulate demand, the algorithm reduces the target number of
leases. AIRM and YieldStar then maximizes revenue for the reduced
occupancy level, which tends to reduce price decreases or increase
rental prices.
145. RealPage acknowledges that revenue protection ``may seem
counterintuitive to leasing needs.'' In June 2023, a landlord
complained to RealPage that ``something in your model is broken''
because ``the pricing model is not lowering rents dramatically''
despite the client's high exposure during a busy summer leasing season.
RealPage explained that, with revenue protection, ``the model still
sees the way to make more revenue is to lease fewer units at higher
prices.'' In other words, the model seeks to ``raise rates to get the
highest dollar value possible for the leases we can statistically
achieve'' and ignore those leases that the client wants but the model
predicts, using competitors' data, the client will not get.
146. The model's hard price floor can trigger revenue protection
mode. In May 2022, for example, a landlord complained that AIRM was
recommending price increases despite a projected shortfall in leases.
Because revenue protection mode cannot be turned off, the RealPage
pricing advisor recommended that the client reduce sustainable
capacity. Sustainable capacity is a client-set parameter that imposes
an inventory constraint and determines the number of leases AIRM and
YieldStar will try to achieve. This is, of course, what revenue
protection mode functionally does on its own: increase inventory
constraints to reduce output.
147. This phenomenon, a RealPage employee explained internally, was
``true revenue protection mode.'' The client's floor plan was priced
toward the bottom of its competitors. AIRM did not see any price
decrease that would achieve the original target number of leases
without dropping below the market floor (determined using competitors'
data). Because AIRM never recommends prices below the market floor,
AIRM instead reduced the number of leases and optimized against that
new, lower occupancy rate.
148. Revenue protection mode interrupts AIRM's and YieldStar's
normal revenue maximization process. As a RealPage data scientist
explained, ``the model really wants to reduce rent but is prevented
from doing so by the revenue protection restriction.'' Revenue
protection leads to higher prices and lower occupancy.
149. Sold-Out Mode. Once a landlord reaches its targeted capacity
for a particular floor plan, the model considers that floor plan ``sold
out'' even though units may still be physically available. In that
situation, AIRM and YieldStar recommends the maximum rent charged by a
property's competitors, even if the floor plan's previous price was far
lower.
150. RealPage intentionally designed sold-out mode to use
competitively sensitive data to lift rents. In an earlier version of
the software, sold-out mode pushed rents to 95% of that floor plan's
highest recently achieved rent. But RealPage modified the algorithm in
2022 to go ``straight to 100% of comps,'' deliberately aligning rents
with competitors' highest rents, rather than the property's own
historical performance.\8\
---------------------------------------------------------------------------
\8\ RealPage has at least considered changing this model logic
because it introduced meaningful pricing volatility and significant
price increases. Even if RealPage has implemented this proposed
logic change, the new model logic still incorporates competitors'
confidential rents because AIRM and YieldStar recommend a market
position that is tied to the bottom and top of the market, as
defined by mapped competitors.
---------------------------------------------------------------------------
151. The Governor. AIRM and YieldStar favor recommended price
increases over price decreases. When the model calculates that the
current day's ``optimal'' price will result in greater revenue than the
previous day, a feature called the ``governor'' causes the model to
recommend the current day's optimal price.\9\ But when AIRM or
YieldStar calculates that the current
[[Page 43085]]
day's optimal price will result in less revenue than the previous day,
the governor recommends the recent average price even though it is not
optimal for the current day. In other words, when market conditions
weaken and the model calculates that a price decrease is warranted,
this guardrail kicks in and recommends keeping the recent rent even
though it is suboptimal. This asymmetry favors price increases over
price decreases.
---------------------------------------------------------------------------
\9\ In some circumstances AIRM will cap the floor plan
recommended price increase at a five percent increase.
---------------------------------------------------------------------------
152. The effect of these guardrails is intentionally asymmetric.
AIRM and YieldStar recommend price increases generated by the model.
But the guardrails reduce or eliminate certain proposed price decreases
even though the model has determined such deviations may contravene the
landlord's individual economic interest.
C. AIRM and YieldStar Harm the Competitive Process by Discouraging the
Use of Discounts and Price Negotiations
153. RealPage discourages landlords using AIRM and YieldStar from
discounting rents. In the multifamily property industry, discounts
typically consist of ``concessions,'' which are financial allowances
(such as a free month's rent or waived fees) offered to incentivize
renters. Concessions may be offered generally or negotiated
individually with a potential tenant.
154. In a competitive marketplace, each landlord may independently
decide to offer concessions so that it can better compete in enticing
lessors. But, again, RealPage seeks to replace fully independent,
competitive decision-making with collective action by ending
concessions. AIRM and YieldStar do not work as well when landlords use
one-off or lumpy concessions. In its ``best practices'' for revenue
management to landlords, RealPage's guidance is simple: ``Eliminate
concessions.'' Detailed ``best practices'' documents for both YieldStar
and AIRM users explain that ``concessions will no longer be used in
conjunction with'' YieldStar and AIRM.
155. When onboarding a new property, RealPage emphasizes the
importance of accepting price recommendations without offering
discounts, including ``no concessions.'' Concessions cause landlords to
deviate from what RealPage determines is the maximum revenue-generating
price.
156. Landlords have worked to implement RealPage's requests. In one
YieldStar training, Greystar explained that ``Concessions are gone!''
In a client-facing FAQ document about its revenue management products,
RealPage explained that ``the vast majority of our clients have
discontinued the use of concessions.'' A 2023 RealPage client
presentation showed that the number of units offering concessions
generally trended downward from approximately 30% of units in 2013 to
under 15% in 2023. A client's refusal to offer concessions is bolstered
by its awareness of competing landlords receiving the same advice from
RealPage. In addition to discouraging discounts, RealPage discourages
negotiating prices with renters. RealPage trains landlords that
``YieldStar [or AIRM] is managing your Price,'' so the landlord's staff
can focus on other things. The YieldStar or AIRM rent matrix is to be
the source of prices that are given to a prospective renter. RealPage
instructs leasing staff to provide prospective renters the specific
price from the matrix that corresponds to the prospect's desired move-
in date, unit, and lease term. RealPage cautions landlords not to show
renters the matrix itself.
D. AIRM and YieldStar Increase and Maintain Landlords' Pricing Power by
Using Competitors' Data To Manage Lease Expirations
157. Supply is a basic component of pricing. For this reason,
information on a company's supply is highly sensitive, and its
disclosure to competitors is particularly concerning. Yet AIRM and
YieldStar use competitors' supply data precisely for the purpose of
adjusting unit-level pricing, regardless of whether the landlord
accepts the floor plan price recommendation. The goal of this ``lease
expiration management'' is clear: As a RealPage senior manager
explained for a client, using this data means that the client's
property ``will remain in a position of pricing power.''
158. The purpose of lease expiration management is to avoid too
many units becoming available in the market at the same time.
Expiration management only increases unit-level prices. It never
reduces the price.
159. Every landlord can choose to use ``market seasonality'' to
inform its lease expiration management. As the name suggests, market
seasonality adjusts the landlord's prices based on how many of its
competitors' units will be vacant--that is, future supply. This feature
is popular among landlords. For example, one of the largest landlords
in the United States uses it in 98% of its properties. Every single
property that uses market seasonality is leveraging RealPage's access
to this highly sensitive, nonpublic data about its competitors' supply
to inform pricing. RealPage trains landlords to turn on market
seasonality as a best practice.
160. When activated, the market seasonality function changes unit-
level prices across the different possible lease terms regardless of
whether the landlord accepts the AIRM or YieldStar floor plan price
recommendation.
161. RealPage determines for landlords an important input into
lease expiration management: the expirations threshold. This threshold
influences the point at which expiration premiums are added. The
threshold calculation relies on nonpublic lease transaction data for
the property's submarket and pulls from numerous RealPage products,
including YieldStar, AIRM, OneSite, Business Intelligence, and
Performance Analytics with Benchmarking. Landlords cannot adjust the
expirations threshold.
162. Fueled by competitor data, expiration management results in
``increased stability'' and ``pricing power.'' Using competitors' data
reduces the risk of overexposure that ``could erode rent roll growth.''
By adjusting price recommendations based on how much total supply is
forecast in the market for a given time period, AIRM empowers landlords
to charge higher prices than they could without access to competitors'
nonpublic data.
E. No Procompetitive Benefit Justifies, Much Less Outweighs, RealPage's
Use of Competitively Sensitive Data To Align Competing Landlords
163. AIRM and YieldStar do not benefit the competitive process or
renters. Any legitimate benefits of revenue management software can be
achieved through less anticompetitive means, and any theoretical
additional benefits of AIRM and YieldStar are not cognizable and
outweighed by harm to the competitive process and to renters.
V. RealPage Uses Landlords' Competitively Sensitive Data To Maintain
Its Monopoly and Exclude Commercial Revenue Management Software
Competitors
164. Landlords are not the only ones that benefit from RealPage's
rental pricing practices. RealPage benefits too through maintaining its
monopoly over commercial revenue management software for conventional
multifamily housing rentals. In that market, RealPage's internal
documents reflect that it commands an 80% share.
165. RealPage's core value proposition creates a self-reinforcing
feedback loop of data and scale advantages. The sharing of
competitively sensitive information among rivals attracts more
landlords that seek to maximize revenues and extract more money from
renters. As a result of its exclusionary conduct, RealPage has been
able to
[[Page 43086]]
obstruct rival software providers from competing on the merits via
revenue management products that do not harm the competitive process.
166. Over time, RealPage has become more entrenched and has stymied
alternatives unless they too enter into similar unlawful agreements
with landlords to obtain and use nonpublic transactional data to price
units. Even then, RealPage's unparalleled troves of competitively
sensitive data provide an ill-gotten advantage.
A. Landlords Are Drawn to RealPage Because of Access to Nonpublic
Transactional Data That Is Used To Increase Landlords' Revenue
167. Landlords prize RealPage's accumulation of nonpublic
transactional data from competing landlords. For example, Greystar
noted that ``RealPage supplies the best set of transactional data
available via their millions of units of data--this becomes a valuable
source of truth to our competitive landscape.'' In a training document
for its employees, the same landlord explained that ``better data =
better outcomes'' and that AIRM has ``over 15 million units of data
available.'' From the perspective of Greystar, ``pricing decisions
start with data'' and that precision in pricing ``comes from data
driven decisions.'' Importantly, the landlord believed that AIRM's
ability to ``examine data quality . . . each night'' via its property
management software integrations, including guest card entry, ``plays
an important role'' in pricing.
168. As another example, Cushman & Wakefield identified this data
as especially helpful in a dense market because of insights into
competitors' actions in the market. The same landlord also concluded
that the more data points, the better confidence a landlord has in
RealPage's rental recommendations. According to Cushman & Wakefield,
more data--especially data about concessions--enabled the landlord to
make better decisions because it showed the landlord where the market
stood. Cushman & Wakefield's director of revenue management explained
to a colleague that YieldStar ``collects about 14 MILLION transactional
lease data across the US and has over 20 years of historical records.''
The director acknowledged that ``[t]his is huge! Essentially, this is a
window into the market and the shifts we are going to experience . . .
Having insight into this data, allows [landlords] to make changes with
the dynamic changes in the market.''
169. Willow Bridge, who compared AIRM to another commercial revenue
management software product, noted that the competing product ``is
about half of the cost and does a good job in reviewing rents and
making recommendations but does it without the additional reporting
capabilities and market data that AIRM uses.'' Ultimately, this
landlord decided to push their owner clients towards AIRM. The
landlord's decision to use AIRM was in part based on receiving ``more
accurate and time sensitive data'' and noted that, although revenue
management is not changing, ``the amount of data and how that
information is used to grow revenue is bigger and better than ever''
with AIRM.
170. Landlords want access to RealPage's transactional data because
RealPage advertises, and landlords believe, that the use of this data
will increase a landlord's revenue. ``Due to the amount of data
RealPage possesses,'' Greystar explained, RealPage developed AIRM ``to
leverage machine learning to improve both the supply and demand
modeling and provide a tool to further customize to each asset's
needs.'' The materials sent to the landlord's clients also included a
flyer explaining that AIRM will ``outperform the market 2-7% year over
year'' and that it provides ``[a]ctionable intelligence derived from
the industry's largest lease transaction database of 13M+ units.''
171. Landlords view the lack of access to transactional data as a
significant shortcoming in other commercial revenue management
software. One landlord received a request from a property owner client
for information on YieldStar and how it compared to another commercial
revenue management product. A landlord executive explained that
YieldStar was backed by robust data and ``millions of units of
transactional data to support not only their demand and forecast
modeling but also their market/competitive set information.'' She
concluded that the other revenue management software was ``in a
completely different class'' than YieldStar. More than two years later,
the same executive again concluded that this company's new revenue
management product was inferior to AIRM because AIRM had far more
transactional data, supported by RealPage's Market Analytics survey
data. In another example, a different landlord compared multiple
commercial revenue management products to RealPage's YieldStar. He
concluded that a major weakness of these alternatives was that they
lacked access to transactional data on competitors' rents.
B. RealPage's Collection and Use of Competitively Sensitive Data
Excludes Competition in Commercial Revenue Management Software
172. RealPage recognizes the barriers to competition on the merits
that its data, scale, and business model provide. RealPage understands
that ``pricing decisions start with data.'' RealPage explains to its
clients that ``[t]he data entered into your [property management
software] and collected each night, along with current market data (and
lead data if OneSite) provides insight into advantageous demand
drivers, identifies revenue risk and opportunity, and captures this
competitive landscape for informed pricing.''
173. This data and scale advantage is significant and creates a
feedback loop that further increases barriers to competition for
commercial revenue management software. RealPage touts its access to an
``unmatched database.'' In one case from 2023, a RealPage sales
representative noted that RealPage's ``revenue management is the most
widely adopted solution in the industry'' and RealPage had
``approximately 4.8M units on revenue management.'' In a 2023
presentation for AIRM, RealPage advertised that the ``[a]mount of data
we have (~17mm units) is unique to RealPage'' and that the ``[q]uality
of data is best in class given that it is `Lease Transaction Data.' ''
RealPage claimed this ``supports that fact that the industry views
RealPage as the source of truth for performance data.''
174. RealPage has used this competitively sensitive data to develop
an AI-driven revenue management solution that leverages the scale and
scope of its data. RealPage's plan to use this database as fuel for its
AI pricing model is spelled out in a Go-To-Market summary from 2019. In
that document, RealPage describes that:
RealPage can achieve $10 Million in organic ACV growth through
delivery of the next generation of revenue management. Failure to do
so reduces the opportunity to harvest gains from our $300M
investment in LRO and places a portion of current $100M revenue
management revenue at risk to emerging competitors, including Yardi
and low-cost alternatives that say `all revenue management is the
same.' Over time we can sunset YieldStar and LRO reducing expense,
and leverage LRO capabilities as a revenue management lite offering.
175. This plan came to fruition with the introduction of AIRM. In a
RealPage training presentation from February 2020--right before the
launch of AIRM--RealPage discusses a new optimization solution that is
built on the ``RealPage Foundation'' which is
[[Page 43087]]
defined as ``13.5m units of lease transactional data informing our
models with real actionable intelligence in near real time.'' As
described earlier in the deck, RealPage's competitors ``lack the
foundational capabilities on which to build upon'' leaving RealPage
with the possibility ``to tie together each capability . . . in a
single view.''
176. RealPage knows that its rivals do not have access to similar
data sets. In one presentation from 2022, RealPage discussed competing
revenue management products from Yardi and Entrata. Yardi and Entrata
have fewer than 250,000 units, RealPage concluded, while RealPage had
at least 4 million. Unlike RealPage, Yardi had a limited data set that
used data only from Yardi's property management software. RealPage
likewise explained that Entrata lacked much data outside of student
housing and Entrata's revenue management software worked only with its
own property management software, meaning Entrata could not pull data
from RealPage's OneSite or other property management software products.
RealPage further criticized manual in-house pricing options for having
biased data, introducing errors through manual pricing, and being
inefficient.
177. RealPage pitches prospective clients on its unique access to
and use of nonpublic transactional data that is competitively
sensitive. In 2021, RealPage discussed internally how to pitch AIRM to
a prospective client who was considering an alternative revenue
management solution. A RealPage employee pointed to the competitor's
lack of ``AI driven competitor information derived from lease
transaction data.'' Another employee added that the salesperson should
amplify the prospective client's concerns about the competitor's lack
of nonpublic transactional data, comparing it to buying a ``Ferrari
without an engine.'' RealPage's chief economist concurred.
178. RealPage's use of competitors' nonpublic transactional data
provides it an important advantage on pricing renewals. Information on
renewals is not available publicly. Competing revenue management
vendors who do not use nonpublic, competitively sensitive data are left
partially blind to this important part of the rental market. In 2022, a
RealPage salesperson stressed this advantage to a prospective client
who was also considering a competing commercial revenue management
solution. The salesperson noted the lease transaction data RealPage
collected on a nightly basis and declared that RealPage had an
``unequaled ability to stress test renewals nightly and drive amenity
optimization.''
179. RealPage recognizes that its use of competitively sensitive
data minimizes any competitive pressure it faces. A RealPage senior
vice president explained in a strategy document that RealPage's unique
nonpublic data on leasing decisions was a ``data moat,'' protecting
RealPage from competitors. In 2020 RealPage's chief economist noted
that RealPage's access to this data was a ``major competitive
advantage'' and a ``major reason we can do what we do.'' In 2021 a
prospective client asked RealPage why AIRM cost three times the amount
of a competing revenue management product. Internally, a RealPage
employee pointed to AIRM leveraging daily transactional data of over 13
million units to collect competitors' rents and forecast demand. He
noted that multiple large landlords had refused to adopt the competing
revenue management product rather than AIRM even when the competitor
offered it for free. The same RealPage employee explained to another
client that RealPage's leveraging of lease transaction data--with
access to confidential data for over 14 million units--was a key
advantage over a competing commercial revenue management provider.
180. In June 2023 a landlord emailed RealPage and asked, ``who are
your competitors?'' A RealPage sales executive responded, ``Our revenue
management solution does not have any true competitors, mainly because
our data is based on real lease transaction data from all kinds of
third-party property management systems . . . .''
181. In addition, when discussing a potential entrant, a RealPage
executive noted that the entrant needed ``to get the data to enable
[revenue management].'' He further noted that [g]etting the data (and
more modern methods) . . . will be hurdles for [the entrant].'' Another
RealPage senior executive explained that shifting clients from LRO,
which is less reliant on competitively sensitive information of rivals,
to AIRM, which is very reliant on such information, reduced the threat
from new entry when she noted that migrating LRO clients to AIRM was
``critical to reducing the risk that may come from this new [entrant's]
offering.''
182. RealPage's power and conduct in connection with commercial
revenue management software serves to exclude rivals and maintain its
monopoly power. RealPage has ensured rivals cannot compete on the
merits unless they enter into similar agreements with landlords, offer
to share competitively sensitive information among rival landlords, and
engage in actions to increase compliance. As a result of its
exclusionary conduct, RealPage has been able to obstruct rival software
providers from competing via revenue management products that do not
harm the competitive process in addition to cementing its massive data
and scale advantage that keeps increasing due to feedback effects.
VI. Relevant Markets
A. Conventional Multifamily Rental Housing Markets
1. Product Markets
183. Conventional multifamily rental housing is a relevant product
market. Conventional multifamily rental housing includes apartments
available to the general public in properties that have five or more
living units. Conventional rental housing does not include student
housing, affordable housing, age-restricted or senior housing, or
military housing. This product market reflects consumer preferences,
industry practice, and governmental policy.
184. In 2023, RealPage estimated the conventional multifamily
rental market to cover approximately 14 million units. The 2021
American Housing Survey estimated a total of 21.1 million multifamily
apartments--not limited to conventional--in the United States.
(a) Conventional Multifamily Rentals Are Distinct From Other Types of
Multifamily Housing
185. Other types of multifamily apartment buildings are not good
substitutes for conventional multifamily rentals. Some kinds of
multifamily buildings are restricted to specific types of renters, such
as student housing units, affordable housing units (i.e., income-
restricted housing), senior (i.e., age-restricted) housing, and
military housing. These housing units focused on different classes of
renters are not reasonable substitutes for conventional multifamily
rentals. RealPage distinguishes conventional multifamily as being in a
different market segment from senior, affordable, and student housing
in the ordinary course of business.
186. Non-conventional units are not widely available to all renters
and can exhibit different buying patterns. For example, student housing
serves individuals enrolled in higher education and is typically
located on or near universities. Student housing is typically leased by
the bed instead of by unit, and faces a significantly different leasing
cycle and different patterns in
[[Page 43088]]
renewals and leasing practices. Recognizing these differences, RealPage
will assign to student properties surrogates that are distant student
assets rather than nearby conventional assets. RealPage in fact offers
a different version of both AIRM and OneSite, its property management
software, for the ``student market.''
187. Affordable housing units are available only to individuals or
households whose income falls below certain thresholds. Multiple
federal affordable housing regulations, for example, require
participants in affordable housing programs to have incomes lower than
a set percentage, such as 30%, of the median family income in the local
area. Affordable housing units are also relatively scarce, with
families seeking such housing often waiting years on a waitlist. These
legal and practical restrictions prevent affordable housing from being
a reasonable substitute to conventional multifamily housing for the
typical renter.
188. Senior housing is typically restricted to individuals aged 55
and older. RealPage separates senior housing into four categories:
independent living, assisted living, memory care, and nursing care.
Independent living offers senior-focused amenities--such as
transportation, meals, and social gatherings among community members--
that materially increase housing costs and are less desirable to
younger households. The other three categories of senior housing
provide professional or special care to assist renters with basic tasks
like eating, bathing, and dressing, and they are not reasonable
substitutes for conventional multifamily rentals.
189. Military housing is also not a reasonable substitute to
conventional multifamily rentals. It is typically geographically
proximate to military installations, with roughly 95% of military
housing found on-base. Although civilians may in some cases be able to
live in military housing properties experiencing low occupancy rates,
military regulations place them below five higher-priority categories
of potential renters, including active and retired military personnel.
(b) Single-Family Housing Is Not a Reasonable Substitute to Multifamily
Rentals
190. The multifamily industry, government regulators, and policy
documents distinguish between properties with at least five units,
which are classified as ``multifamily housing'' and those with fewer
units, which are classified as ``single-family rentals.''
191. The purchase of single-family or other types of homes is not a
reasonable substitute for conventional multifamily housing rentals. A
former RealPage economist explained that ``the choice between renting
and owning is first and foremost a life stage and lifestyle choice over
a financial one.'' Single-family homes also generally require a
substantial down payment. In March 2023, a RealPage economist estimated
an ``entry premium'' of $800 per month to home ownership over rentals.
According to a 2021 RealPage strategic planning guide, the ``myth''
that people were abandoning multifamily properties for single-family
homes is false, stating that ``rising home sales do not hurt apartment
demand.'' Single-family home sales are not reasonable substitutes for
conventional multifamily housing.
192. More broadly, renters living in conventional multifamily
apartments will not switch to single-family homes--purchases or
rentals--because of a small increase in rent. The decision to move from
an apartment building to a single-family home is primarily a life-stage
and lifestyle choice. For example, the decision by a household to have
children may spur a move to a single-family home. In many areas,
relatively few children live in conventional multifamily apartments.
Multifamily apartments typically offer community amenities and a
different lifestyle, such as high walkability in an urban area, whereas
single-family homes generally do not offer the same amenities and offer
instead increased privacy, including private yards. A RealPage analyst
explained in 2022 that because a move to a single-family home is a
``lifestyle choice,'' single-family home rentals were not direct
competitors to multifamily rental housing. A 2022 RealPage deck, shared
with a landlord, stated that multifamily rentals and single-family
rentals were ``complementary, not competitive,'' and targeted different
renters, with different floor plans, in different locations. Another
RealPage analyst explained to a multifamily property owner that single-
family rentals offer a different renter profile than multifamily
rentals.
193. Industry participants agree that single-family rentals attract
a different pool of renters from multifamily rentals. A managing
director of a single-family rental property management company
explained in 2021 that a renter's journey from multifamily apartment
living to single-family rentals came as life stages evolved. The CEO of
a single-family rental developer similarly explained that these single-
family rental homes are for renters who age out of multifamily
apartments.
194. Single-family rentals are also typically priced higher than
multifamily apartments, further reducing potential substitution between
them. The chairman of one institutional multifamily property owner
explained in a 2022 earnings call that multifamily housing was
relatively affordable compared to single-family rentals. An industry
price index showed that, in March 2024, single-family rent was
approximately 18% higher than multifamily rent.
(c) Conventional Multifamily Rental Units With Different Bedroom Counts
Are Relevant Product Markets
195. Different bedroom floor plans also constitute relevant product
markets. A key criterion by which a current or prospective renter
searches for a rental unit is the number of bedrooms. One-bedroom units
are substitutes for other one-bedroom units, two-bedroom units are
substitutes for other two-bedroom units, and so forth. Individual
renters may change their desired numbers of bedrooms, but this is
typically tied to changes in circumstance independent from price. For
example, the birth of a new child may require a family to shift from a
one-bedroom unit to a two-bedroom unit.
196. RealPage adopts this practical reality in the ordinary course
of business. For every property using AIRM or YieldStar, RealPage maps
peer floor plans. These mapped floor plans capture reasonable
substitutes for the subject property floor plan and reflect the
perceived market by a prospective renter.
197. To be selected as a peer, a floor plan must have the same
number of bedrooms. A RealPage employee explained the mapping process
to a client: ``we are looking specifically at the bedroom level. The
tool will only map 2b[edroom] with 2b[edroom] or 1b[edroom] with
1b[edroom].'' The object of mapping peers is to mirror the prospect
buying experience by identifying properties that a potential tenant
will see in online searches when searching for a particular floor plan
and price range.
[[Page 43089]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.004
198. AIRM and YieldStar price the different floor plans, which
consist of different numbers of bedrooms, independently. RealPage
testified that the model considers no cross-price elasticity between
different floor plans: ``when you set up the different floor plans, a
one bedroom, a two bedroom, or three bedroom, those are completely
independent. . . . [T]here's no influence in what the pricing is for
the two bedrooms, for example . . . has no influence on what the
pricing is for the one bedrooms.'' Landlords also take steps to
maintain a pricing spread between one- and two-bedroom units and avoid
pricing one-bedrooms at a higher rate than two-bedroom units.
199. Landlords recognize that units with different bedroom counts
face different demand from renters. For example, Greystar explained
internally in 2022 that demand for studio apartments differs from
demand for three-bedroom units. A separate 2023 training by Greystar
reiterated that demand trends, and therefore pricing trends, differ by
bedroom counts and that staff should not react to a downward trend in
one category, such as two bedrooms, with discounts in one- or three-
bedroom units. At another time, Greystar emphasized the benefit of
RealPage's lease expiration management feature because it is managed at
the bedroom level--not at the property level--so it could match
seasonal demand for units with that specific number of bedrooms. A
revenue manager at Willow Bridge similarly explained to colleagues that
one-bedroom units have drastically different demand patterns from two-
bedroom units and from three-bedroom units.
2. Geographic Markets
200. Defining relevant geographic markets help courts assess the
potential anticompetitive impact of the agreements challenged. Here,
the relevant geographic markets for the purposes of analyzing the
anticompetitive effects of RealPage's agreements with landlords are the
areas in which the sellers (the landlords) sell and in which the
purchasers (potential renters) can practicably turn for alternatives.
RealPage's agreements are alleged to have suppressed price competition
in the markets for conventional multifamily housing. The relevant
geographic markets to assess those agreements are those property
locations close enough for their apartments to be considered reasonable
substitutes. In delineating a geographic market for conventional
multifamily housing, the focus is inherently local. Renters are
typically tied to a particular location for work, family, or other
needs.
201. RealPage recognizes the local nature of geographic markets.
One RealPage former employee explained that under ``Real Estate 101
rules, real estate is local, local, local.'' Another RealPage former
chief economist noted that an effective evaluation of a property's
performance must be done in comparison to similar properties in the
property's neighborhood because competitive conditions in the
neighborhood could differ widely from the city at large. When training
landlords on lease expiration management, two RealPage executives
explained that market seasonality was based on the most accurate
geographic level, such as zip code, neighborhood, or submarket. They
further explained that renters typically move locally. Similarly, a
former property manager explained that potential tenants will look at a
small number of properties in the same neighborhood, and it is on that
neighborhood level where competition occurs among multifamily
properties. This individual testified, ``location really does matter in
real estate.''
202. RealPage has created a tool called True Comps. Used in
performance benchmarking products that provide decisional support to
AIRM and YieldStar, True Comps provides a more accurate mapping of
competitor properties. It uses an algorithm to find the properties most
comparable to the subject property, as measured by characteristics
including distance, effective rent, age, property height, and unit
count and mix. By default, True Comps picks competitors within a 15-
mile radius. In scoring distance, True Comps applies a ``highly-
punitive model''--the distance score drops from 99% for a distance of
0.05 miles, to 56% for a distance of 2 miles, and to 10% for a distance
of 8 miles. Thus, RealPage acknowledges and incorporates small
geographic areas as the appropriate
[[Page 43090]]
location in which to find true competitive alternatives.
203. During a property's implementation process, AIRM and YieldStar
require the mapping of peer properties, including competitors. RealPage
starts by looking for competitors within a half-mile radius from the
subject property and then expands as necessary. Geographic proximity is
in fact so important that YieldStar has a default radius that limits
its search for competing properties to no more than 5 miles in urban
settings, and to no more than 10 miles in suburban settings. RealPage
has an internal process for escalating any proposed peer property that
is more than 15 miles away.
(a) RealPage-Defined Submarkets Identify Relevant Geographic Markets
204. RealPage defines geographic submarkets in the ordinary course
of business. Each submarket reflects the geographic area, defined by a
set of zip codes, that features similar properties that compete for the
same pool of potential renters. In constructing submarkets, which are
generally larger than its neighborhoods, RealPage considers major
roads, city and county boundaries, and school districts. RealPage also
considers socioeconomic factors and apartment market characteristics,
such as the age of properties and rental rates.
205. Even within a city, apartment demand varies significantly
based on factors such as employment. Supply may also vary widely as
existing properties and new construction may be located in different
parts of a city. A former RealPage chief economist explained that
because ``real estate is very local . . . you typically want to take a
. . . more narrow view if you can on what's going on in any given
submarket.'' \10\
---------------------------------------------------------------------------
\10\ RealPage also tracks data at a more granular level than a
submarket, called a neighborhood.
---------------------------------------------------------------------------
206. The multifamily industry recognizes submarkets as an important
geographic area for analyzing competition and pools of renters.
Multiple industry analysts offer data by submarkets. A revenue
management director at Greystar testified about a submarket that
``everybody in our industry uses this term.'' She further stated that
submarkets are a standard categorization system, used by RealPage and
others, including to benchmark a subject property's performance with
comparable properties. A revenue manager at Cushman & Wakefield
circulated a scorecard comparing performance to the submarket, and
exclaimed that ``we're perfectly aligned with the submarket'' on rent
roll.
207. A revenue management executive at Willow Bridge testified that
submarkets identify specific, smaller areas of a city where renters
look to live to be close to schools or work. This executive testified
that submarkets typically identify the area within which a renter is
comparing apartment options. This landlord tracks other properties'
rents in a subject property's submarket to make sure the subject
property remains competitive, and if rents in a submarket increased,
then the landlord expected that its property in that submarket would
also raise its rents.
208. Appendix A lists RealPage-defined submarkets that identify
relevant local markets in which the agreements among RealPage and
landlords to share nonpublic, competitively sensitive information for
use in pricing conventional multifamily rentals have harmed, or are
likely to harm, competition and thus renters.
209. The RealPage-defined submarkets identified in Appendix A are
relevant markets in which the agreements between RealPage and AIRM and
YieldStar users to align pricing has harmed, or is likely to harm,
competition and thus renters. In each of these markets, the penetration
rate for AIRM and YieldStar ranges from at least around 26% to 69%, and
for AIRM, YieldStar, and OneSite ranges from at least around 30% to
78%.\11\ In each of these markets, the landlords using AIRM or
YieldStar and/or sharing competitively sensitive information
collectively have market power.
---------------------------------------------------------------------------
\11\ Including penetration rates for RealPage's Business
Intelligence and Performance Analytics with Benchmarking products,
which landlord users agree to share nonpublic data with RealPage
that RealPage then uses in AIRM and YieldStar, would increase the
data penetration rates subject to unlawful agreements for these and
all other relevant conventional multifamily rental housing markets
identified in the Complaint.
---------------------------------------------------------------------------
210. Appendix B identifies submarkets by bedroom count that are
relevant markets in which the agreements between RealPage and
landlords, and agreements among landlords, to share nonpublic,
competitively sensitive information for use in pricing conventional
multifamily rentals have harmed, or are likely to harm, competition and
thus renters.
211. The markets identified in Appendix B are relevant markets in
which the agreements between RealPage and AIRM and YieldStar users to
align pricing collectively have harmed, or are likely to harm,
competition and thus renters. In each of these markets, the penetration
rate for AIRM and YieldStar ranges from at least around 26% to 79%, and
for AIRM, YieldStar, and OneSite ranges from at least around 30% to
over 80%. In each of these markets, the landlords using AIRM or
YieldStar and/or sharing competitively sensitive information
collectively have market power.
(b) Core-Based Statistical Areas (CBSAs) Are Relevant Geographic
Markets
212. A core-based statistical area (CBSA) is also a relevant
geographic market. A CBSA is a geographic area based on a county or
group of counties. A CBSA has at least one core of at least 10,000
individuals. A CBSA includes adjacent counties that have a high degree
of social and economic integration with the core, as measured by
commuting ties. A CBSA includes both metropolitan statistical areas and
micropolitan statistical areas. A CBSA includes the set of reasonable
conventional multifamily rental alternatives to which a renter would
turn in response to a small but significant, nontransitory price
increase.
213. RealPage itself tracks CBSAs in the ordinary course of
business and refers to them as ``markets.''
214. Table 1 identifies relevant markets in which the agreements
between RealPage and landlords, and agreements among landlords, to
share nonpublic, competitively sensitive information for use in pricing
conventional multifamily rentals collectively have harmed, or are
likely to harm, competition and/or consumers. In each of these markets,
the penetration rate for AIRM and YieldStar ranges from at least around
26% to 37%, and for AIRM, YieldStar, and OneSite ranges from at least
around 35% to 45%. Three of these markets are located in North
Carolina.
Table 1--Core-Based Statistical Area (CBSA) Markets
------------------------------------------------------------------------
Core-based statistical area YS/AIRM/OneSite 30%
(CBSA) markets YS/AIRM 30% or more or more
------------------------------------------------------------------------
Atlanta-Sandy Springs-Roswell, Yes Yes
GA...........................
[[Page 43091]]
Austin-Round Rock, TX......... Yes Yes
Charleston-North Charleston, ................... Yes
SC...........................
Charlotte-Concord-Gastonia, NC- Yes Yes
SC...........................
Dallas-Fort Worth-Arlington, Yes Yes
TX...........................
Denver-Aurora-Lakewood, CO.... Yes Yes
Durham-Chapel Hill, NC........ Yes Yes
Nashville-Davidson-- ................... Yes
Murfreesboro--Franklin, TN...
Orlando-Kissimmee-Sanford, FL. Yes Yes
Raleigh, NC................... Yes Yes
------------------------------------------------------------------------
215. The markets identified in Table 1 are relevant markets in
which the agreements between RealPage and AIRM and YieldStar users to
align pricing collectively have harmed, or are likely to harm,
competition and thus renters.
216. Table 2 identifies relevant CBSAs by bedroom counts that are
relevant markets in which the agreements between RealPage and
landlords, and agreements among landlords, to share nonpublic,
competitively sensitive information for use in pricing conventional
multifamily rentals collectively have harmed, or are likely to harm,
competition and/or consumers. In each of these markets, the penetration
rate for AIRM and YieldStar ranges from at least around 27% to 42%, and
for AIRM, YieldStar, and OneSite ranges from at least around 33% to
45%.
Table 2--Core-Based Statistical Area (CBSA) Markets by Bedroom Count
----------------------------------------------------------------------------------------------------------------
Number of YS/AIRM 30% or YS/AIRM/OneSite 30%
Core-based statistical area (CBSA) markets beds more or more
----------------------------------------------------------------------------------------------------------------
Atlanta-Sandy Springs-Roswell, GA............................ 1 Yes Yes
Atlanta-Sandy Springs-Roswell, GA............................ 2 Yes Yes
Austin-Round Rock, TX........................................ 1 Yes Yes
Austin-Round Rock, TX........................................ 2 Yes Yes
Charleston-North Charleston, SC.............................. 1 Yes Yes
Charleston-North Charleston, SC.............................. 2 ............... Yes
Charlotte-Concord-Gastonia, NC-SC............................ 1 Yes Yes
Charlotte-Concord-Gastonia, NC-SC............................ 2 Yes Yes
Dallas-Fort Worth-Arlington, TX.............................. 1 Yes Yes
Dallas-Fort Worth-Arlington, TX.............................. 2 Yes Yes
Denver-Aurora-Lakewood, CO................................... 1 Yes Yes
Denver-Aurora-Lakewood, CO................................... 2 Yes Yes
Durham-Chapel Hill, NC....................................... 1 Yes Yes
Durham-Chapel Hill, NC....................................... 2 Yes Yes
Nashville-Davidson--Murfreesboro--Franklin, TN............... 1 Yes Yes
Nashville-Davidson--Murfreesboro--Franklin, TN............... 2 ............... Yes
Orlando-Kissimmee-Sanford, FL................................ 1 Yes Yes
Orlando-Kissimmee-Sanford, FL................................ 2 Yes Yes
Raleigh, NC.................................................. 1 Yes Yes
Raleigh, NC.................................................. 2 Yes Yes
----------------------------------------------------------------------------------------------------------------
217. The markets identified in Table 2 are relevant markets in
which the agreements between RealPage and AIRM and YieldStar users to
align pricing collectively have harmed, or are likely to harm,
competition and thus renters.
218. Even assuming available land and no regulatory constrictions,
local markets for conventional multifamily rental housing feature
substantial barriers to entry. Landlords seeking to respond to rising
rental prices by expanding supply, rather than simply acquiring an
existing property, typically face substantial lead times to construct a
new multifamily property. Additionally, there are significant upfront
capital costs, including to fund expenditures on building material and
labor, that are recuperated over time, which may require landlords to
secure financing.
B. Commercial Revenue Management Software Market
219. RealPage has monopoly power in the market for commercial
revenue management software for conventional multifamily housing
rentals in the United States, with a durable market share over 80%,
according to internal documents and other information.
1. Product Market
220. Commercial revenue management software for conventional
multifamily housing rentals is a relevant antitrust product market.
221. Other methods for pricing conventional multifamily housing
units are not reasonable substitutes for commercial revenue management
software. RealPage and others in the industry recognize that revenue
management software companies for multifamily housing units compete
primarily against each other and not manual or do-it-yourself pricing
methods.
222. Internal documents from RealPage refer specifically to
commercial revenue management for multifamily housing and recognize
RealPage's substantial market share. For example, a 2021 strategy
presentation described RealPage as ``the market leader in commercial
revenue
[[Page 43092]]
management for multifamily [housing] with 45 of the 50 Top NMHC Owner
and Operators'' all using RealPage's revenue management products.
223. A presentation to RealPage's board in 2022 noted that
``[RealPage] has gained [the] pole position in Revenue Management
largely through the success of AI Revenue Management, which has become
RealPage's leading differentiating product.'' Additionally, the
presentation described how ``Revenue Management is experiencing strong
growth driven by AIRM'' due to its ``PMS agnostic approach'' which
gives RealPage the ability to aggregate data from its clients resulting
in ``revenue management [that] has achieved a market share of 95% of
the top 50 owners and operators.''
224. RealPage acknowledges its market power and durable market
position. A 2023 RealPage presentation reviewing the use of artificial
intelligence in property technology noted that ``RealPage is already
the de facto market leader in certain key areas at leveraging AI for
multifamily proptech'' and shows ``revenue management'' as the area
where it is the furthest ahead.'' Later, the same presentation noted
that RealPage's current offer for revenue management is ``best-in-
class'' and that ``[n]o other company is cross-pollinating their
pricing tools with data in a way similar to [RealPage].'' As early as
2019, a RealPage presentation for clients stated that RealPage ``has
around 80% of the Revenue Management market share.'' That share has
proved durable over time. In 2023, during a sales pitch to a property
owner, a RealPage representative noted that ``[RealPage] has 80% to 85%
of the market share with the closest competitor around 12% (<750K
units).''
225. In late 2021, a RealPage employee preparing competitor
intelligence explained to RealPage's chief economist that RealPage
``dominate[d]'' revenue management. He added that RealPage
``dominate[d]'' Yardi and Entrata, which are the next two largest
commercial revenue management competitors.
226. RealPage's monopoly power is protected by barriers to entry,
including the unlawful collection and use of competitors' nonpublic
transactional data on millions of multifamily units.
227. Landlords also recognize RealPage's substantial market share
and market power over commercial revenue management software. In 2024,
a landlord revenue management executive testified that manual pricing
does not compete with AIRM. The same landlord pitched YieldStar to its
owner clients by explaining that ``it's evident manual pricing cannot
solve at the level a revenue management tool can.''
228. In a 2023 pricing dispute with a large landlord, RealPage
refused to lower the price for its AIRM software. In response, an
employee employed by the landlord noted that it was no surprise they
would not decrease their price, remarking that ``[h]ere is the joy of a
monopoly on a product category.'' In 2021, a different landlord
commented that ``the entire industry is feeling the monopolizing
effects of RealPage right now and everyone is hungry for a new
product.'' A third landlord noted during AIRM renewal negotiations in
2022 that it had no options besides RealPage, with a senior executive
stating about RealPage, ``too bad they have a monopoly going here!''
Also in 2022, a fourth landlord, in the face of RealPage pushing a 400%
increase in annual revenue management costs over a five-year period,
bemoaned the ``limited competition in the market around revenue
management tools'' and how ``the industry desperately needs a solid
competitor,'' and then discussed a plan to ``incubate a viable
alternative to AIRM in the future.'' In 2024, that alternative had less
than one half of one percent market share.
2. Geographic Market
229. The United States is a relevant geographic market for
commercial revenue management software. RealPage sells its commercial
revenue management software in the United States and tracks its
business in the United States in the ordinary course of business.
RealPage sets its subscription prices on a nationwide basis. Further,
RealPage can deploy its commercial revenue management software, which
may use inputs from properties located throughout the country, in any
U.S. state. Landlords in the United States purchase commercial revenue
management software from RealPage to set rental prices for renters in
the United States. Many landlords have centralized revenue management
teams that set nationwide revenue management policies and conduct
revenue management trainings for their employees across the United
States.
VII. Jurisdiction, Venue, and Commerce
230. The United States brings this action pursuant to Section 4 of
the Sherman Act, 15 U.S.C. 4, to prevent and restrain RealPage's
violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1, 2.
231. The Attorneys General assert these claims based on their
independent authority to bring this action pursuant to Section 16 of
the Clayton Act, 15 U.S.C. 26, and common law, to obtain injunctive and
other equitable relief based on RealPage's anticompetitive practices in
violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1, 2.
232. The Attorneys General are the chief legal officers of their
respective States. They have authority to bring actions to protect the
economic well-being of their States and their residents, and to seek
injunctive relief to remedy and protect against harm resulting from
violations of the antitrust laws.
233. This Court has subject matter jurisdiction over this action
under Section 4 of the Sherman Act, 15 U.S.C. 4, and 28 U.S.C. 1331,
1337(a), and 1345.
234. The Court has personal jurisdiction over RealPage, Inc.
(``RealPage''); venue is proper in this District under Section 12 of
the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391 because
RealPage transacts business and resides within this District.
235. RealPage is a privately-owned company organized and existing
under the laws of the State of Delaware and is headquartered in
Richardson, Texas. It is registered to do business in the State of
North Carolina as a foreign corporation offering software solutions for
the multifamily housing industry and software as a service.
236. RealPage engages in, and its activities substantially affect,
interstate trade and commerce. RealPage provides a range of products
and services that are marketed, distributed, and offered to consumers
throughout the United States and across state lines.
237. The Court has personal jurisdiction over Camden Property Trust
(``Camden''); venue is proper in this District under Section 12 of the
Clayton Act, 15. U.S.C. 22, and under 28 U.S.C. 1391 because Camden
transacts business and resides within this District.
238. Camden is a publicly-traded multifamily company organized
under the laws of the State of Delaware and is headquartered in
Houston, Texas. Camden is registered to do business in the State of
North Carolina. Camden owns or manages at least one multifamily rental
property using AIRM within this District.
239. Camden engages in, and its activities substantially affect,
interstate trade and commerce. Camden owns or manages multifamily
rental units across the United States, including within this District.
Camden's rental properties are marketed and offered to consumers
throughout the United States and across state lines.
[[Page 43093]]
240. The Court has personal jurisdiction over Cortland Management,
LLC (``Cortland''); venue is proper in this District under Section 12
of the Clayton Act, 15. U.S.C. 22, and under 28 U.S.C. 1391 because
Cortland transacts business and resides within this District.
241. Cortland is a privately-owned company organized under the laws
of the State of Delaware and is headquartered in Atlanta, Georgia.
Cortland is responsible for the management of multifamily rental
housing properties, either directly owned by an affiliated entity or
other third-party owners of multifamily housing properties. Cortland is
registered to do business in the State of North Carolina. Cortland owns
or manages multiple multifamily rental properties within this District,
which use (or recently used) AIRM. Cortland has a registered agent for
service of process in this District.
242. Cortland engages in, and its activities substantially affect,
interstate trade and commerce. Cortland owns or manages multifamily
rental units across the United States, including within this District.
Cortland's rental properties are marketed and offered to consumers
throughout the United States and across state lines.
243. The Court has personal jurisdiction over Cushman & Wakefield,
Inc. (``Cushman & Wakefield'') and Pinnacle Property Management
Services, LLC (``Pinnacle''); venue is proper in this District under
Section 12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391
because Cushman & Wakefield, including its subsidiary Pinnacle,
transacts business and resides within this District.
244. Cushman & Wakefield is organized under the laws of the State
of New York and is headquartered in Chicago, Illinois. Cushman &
Wakefield's multifamily rental property business is operated through
its subsidiary Pinnacle, and also under the Cushman & Wakefield name
since acquiring Pinnacle in March 2020. Pinnacle is organized under the
laws of the State of Delaware and is headquartered in Frisco, Texas.
Pinnacle is registered to do business in the State of North Carolina.
Cushman & Wakefield U.S., Inc. is also registered to do business in the
State of North Carolina. Pinnacle owns or manages multiple multifamily
rental properties using YieldStar within this District.
245. Cushman & Wakefield engages in, and its activities
substantially affect, interstate trade and commerce. Through Pinnacle,
Cushman & Wakefield owns or manages multifamily rental units across the
United States, including within this District. Cushman & Wakefield
provides a range of multifamily property and revenue management
services that are marketed and offered to consumers throughout the
United States and across state lines.
246. The Court has personal jurisdiction over Greystar Real Estate
Partners, LLC (``Greystar''); venue is proper in this District under
Section 12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391
because Greystar transacts business and resides within the District.
247. Greystar is a privately-owned company organized under the laws
of the State of Delaware and is headquartered in Charleston, South
Carolina. A Greystar management services entity is registered to do
business in the State of North Carolina. Greystar owns or manages
multiple multifamily rental properties using AIRM within this District.
248. Greystar engages in, and its activities substantially affect,
interstate trade and commerce. Through its subsidiaries, including
Greystar Management Services, LLC, Greystar North America Holdings,
LLC, and GREP Washington, LLC, Greystar owns or manages multifamily
rental units across the United States, including within this District.
Greystar provides a range of products and services that are marketed
and offered to consumers throughout the United States and across state
lines.
249. The Court has personal jurisdiction over LivCor, LLC
(``LivCor''); venue is proper in this District under Section 12 of the
Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391 because LivCor
transacts business and resides within this District.
250. LivCor is a privately-owned company organized under the laws
of the State of Delaware and is headquartered in Chicago, Illinois. It
is registered to do business in the State of North Carolina as a
foreign corporation engaging in ownership and investment in real
property and related services. LivCor owns or provides asset management
services at least one multifamily rental property using AIRM within
this District.
251. LivCor engages in, and its activities substantially affect,
interstate trade and commerce. LivCor owns or provides asset management
services for multifamily rental units across the United States,
including within this District. LivCor provides multifamily asset
management services that are marketed and offered to consumers
throughout the United States and across state lines.
252. The Court has personal jurisdiction over Willow Bridge
Property Company LLC (``Willow Bridge''); venue is proper in this
District under 28 U.S.C. 1391 and Section 12 of the Clayton Act, 15
U.S.C. 22 because Willow Bridge transacts business and resides within
this District.
253. Willow Bridge is a privately-owned company organized under the
laws of the State of Texas and is headquartered in Dallas, Texas.
Willow Bridge is registered to do business in the State of North
Carolina as a foreign corporation offering services for the multifamily
real estate industry. Willow Bridge owns or manages multiple
multifamily rental properties using AIRM within this District.
254. Willow Bridge engages in, and its activities substantially
affect, interstate trade and commerce. Willow Bridge owns or manages
multifamily rental units across the United States, including within
this District. Willow Bridge's rental properties are marketed and
offered to consumers throughout the United States and across state
lines.
255. The Durham-Chapel Hill CBSA is partially or entirely within
the Middle District of North Carolina.
256. RealPage tracks the number of rental housing units that use
its commercial revenue management software products, including AIRM and
YieldStar, by market (i.e., a CBSA) and submarket, and several of these
markets and submarkets are entirely or partially within North Carolina.
These RealPage-defined markets include Raleigh/Durham, NC; Charlotte-
Concord-Gastonia, NC-SC; Greensboro/Winston-Salem, NC; Wilmington, NC;
Fayetteville, NC; and Asheville, NC. The submarkets include Southwest
Durham, Northwest Durham/Downtown, East Durham, and Chapel Hill/
Carrboro, all of which are located entirely or partially within this
District.
257. Defendant Landlords each own or manage one or more properties
in one or more relevant markets within the Middle District of North
Carolina for which they, along with other landlords and RealPage,
currently agree (or have in the past agreed) to share information and
align pricing by using AIRM or YieldStar to generate rental pricing
using pooled, competitively sensitive information.
258. A substantial part of the activities and conduct giving rise
to the claims asserted in this Complaint occurred within this District.
As alleged in paragraphs 208-211 above and Appendices A and B below,
relevant local geographic markets in which competition and renters have
been harmed by RealPage's anticompetitive
[[Page 43094]]
conduct include the RealPage-defined submarkets in Raleigh/Durham. As
alleged in paragraphs 214-217 above, relevant geographic markets in
which competition and renters have been harmed by RealPage's
anticompetitive conduct include the Durham-Chapel Hill CBSA.
VIII. VIolations Alleged
First Claim for Relief: Violation of Section 1 of the Sherman Act by
Unlawfully Sharing Information for Use in Competitors' Pricing
(By All Plaintiffs Against RealPage, Cushman & Wakefield, Greystar,
LivCor, and Pinnacle; by All Plaintiffs Except Washington Against
Camden and Willow Bridge; by the United States, Colorado, and North
Carolina Against Cortland)
259. Plaintiffs incorporate the allegations of paragraphs 1 through
258 above.
260. Each landlord using AIRM and YieldStar, including each
Defendant Landlord, has agreed with RealPage to provide RealPage daily
nonpublic, competitively sensitive data. RealPage invites each landlord
to share this information so that it can be pooled to generate pricing
recommendations for the landlord and its competitors. Each of these
landlords, including Defendant Landlords, uses (or has used) RealPage
software, knowing or learning that RealPage will use this data to train
its models and provide floor plan price recommendations and unit-level
pricing not only for the landlord, but for the landlord's competitors
(and vice versa). Landlords are therefore joining together in a way
that deprives the market of fully independent centers of decision-
making on pricing.
261. Each landlord using OneSite, Business Intelligence, or
Performance Analytics with Benchmarking has agreed with RealPage to
provide RealPage daily nonpublic, competitively sensitive data.
RealPage invites each landlord to share this information, and each of
these landlords understands that RealPage will use this data in
RealPage's other products, including revenue management products that
provide pricing recommendations and prices to competing landlords.
262. The transactional data these landlords agree to provide to
RealPage, and indirectly to each other, includes current, forward-
looking, granular, and highly competitively sensitive information. It
includes information on effective rents, rent discounts, occupancy
rates, availability, lease dates, lease terms, unit amenities, and unit
layouts. Landlords also shared information on guest cards and lease
applications.
263. Landlords, including Defendant Landlords and other landlords
that compete with each other in the relevant markets alleged, have
agreed with one another, through RealPage and directly, to exchange
nonpublic, competitively sensitive data, both through RealPage's
revenue management software and by other means. The other means include
RealPage user groups, direct communications, market surveys, and other
intermediaries. The information exchanged includes future pricing
plans, current pricing and occupancy rates, pricing discounts, and
guest traffic.
264. RealPage uses this nonpublic, competitively sensitive data to
train its AIRM models and provide floor plan price recommendations and
unit-level pricing to AIRM- and YieldStar-using landlords. AIRM and
YieldStar are designed to increase prices as much as possible and
minimize price decreases.
265. RealPage engages in a variety of conduct to increase
compliance with the output of its products and the objectives it touts.
266. The sharing of nonpublic, competitively sensitive data with
RealPage, and its use in AIRM and YieldStar, is anticompetitive. It
harms or is likely to harm the competitive process and results, or is
likely to result, in harm to renters and prospective renters in at
least the relevant antitrust markets identified in this complaint.
267. In each relevant market, RealPage and participating landlords
collectively have sufficient market power, including market and data
penetration, to harm the competitive process and renters.
268. AIRM and YieldStar do not benefit the competitive process or
renters. Any theoretical benefits are outweighed by harm to the
competitive process and to renters.
269. Less restrictive alternatives are available to RealPage and
the market. RealPage has recently altered AIRM or YieldStar for some
clients to remove those clients' access to competitors' nonpublic data
in at least certain portions of the software. RealPage has the ability
to make changes to remove broader access to competitors' nonpublic data
in AIRM and YieldStar. RealPage has the capability to modify its
software products to eliminate competitive defects. LRO does not
require the same type and quantity of nonpublic, transactional data
pulled from competitors' property management software.\12\ RealPage has
stopped offering LRO to new clients and made plans to discontinue LRO
for legacy clients by the end of 2024.
---------------------------------------------------------------------------
\12\ Landlords may nevertheless use LRO in ways that may likely
harm competition, as illustrated in paragraphs 59-60 and 100 above.
---------------------------------------------------------------------------
Second Claim for Relief: Violation of Section 1 of the Sherman Act
Through Agreements To Align Pricing
(By All Plaintiffs Against RealPage, Cushman & Wakefield, Greystar,
LivCor, and Pinnacle; by All Plaintiffs Except Washington Against
Camden and Willow Bridge; by the United States, Colorado, and North
Carolina Against Cortland)
270. Plaintiffs incorporate the allegations of paragraphs 1 through
268 above.
271. Each landlord, including Defendant Landlords, that licenses
AIRM or YieldStar has agreed with RealPage to use the software as it
has been designed. This includes providing nonpublic, competitively
sensitive transactional data to RealPage, but more broadly is an
agreement to use AIRM or YieldStar as the means to price the landlord's
rental units. The landlord agrees to review AIRM or YieldStar floor
plan price recommendations, use AIRM or YieldStar to set a scheduled
floor plan rent, and use the AIRM or YieldStar pricing matrix to price
units to renters.
272. AIRM and YieldStar are designed to ``raise the tide'' for all
landlords, including AIRM- and YieldStar-using landlords. AIRM and
YieldStar have the likely effect of aligning users' pricing processes,
strategies, and pricing responses.
273. These landlords understand this effect, and it is a reason why
they sign up for and use AIRM or YieldStar and discuss their usage with
one another in user group meetings and other settings.
274. RealPage engages in a variety of conduct to increase
compliance with the output of its products and the objectives it touts.
275. RealPage's user group meetings and its revenue management
certification program facilitate landlords' agreements with RealPage to
align pricing.
276. Taken together, the agreements between each AIRM or YieldStar
landlord and RealPage to use AIRM or YieldStar, respectively, harm or
are likely to harm the competitive process and renters.
277. The agreement by a landlord to use AIRM or YieldStar is an
agreement to align users' pricing processes, strategies, and pricing
responses.
[[Page 43095]]
Collectively, these agreements between landlords using AIRM or
YieldStar and RealPage are harmful to the competitive process and to
renters.
278. In each relevant submarket and CBSA, RealPage and
participating AIRM or YieldStar landlords collectively have sufficient
market power, including market and data penetration, to harm the
competitive process and renters.
279. AIRM and YieldStar do not benefit the competitive process or
renters. Any theoretical benefits are outweighed by harm to the
competitive process and to renters, and less restrictive alternatives
are available to RealPage and these landlords.
Third Claim for Relief: Violation of Section 2 of the Sherman Act
Through Monopolization of the Commercial Revenue Management Software
Market
(By All Plaintiffs Against RealPage)
280. Plaintiffs incorporate the allegations of paragraphs 1 through
279 above.
281. Commercial revenue management software for conventional
multifamily housing rentals in the United States is a relevant
antitrust market, and RealPage has monopoly power in that market.
282. RealPage has unlawfully monopolized the commercial revenue
management market through unlawful exclusionary conduct. RealPage has
amassed a massive reservoir of competitively sensitive data from
competing landlords and used that data to sell AIRM and YieldStar.
RealPage has ensured that rivals cannot compete on the merits unless
they enter into similar agreements with landlords, offer to share
competitively sensitive information among rival landlords, and engage
in actions to increase compliance. As a result of its exclusionary
conduct, RealPage has been able to obstruct rival software providers
from competing via revenue management products that do not harm the
competitive process in addition to cementing its massive data and scale
advantage that keeps increasing due to self-reinforcing feedback
effects.
283. RealPage's anticompetitive acts have harmed the competitive
process and reduced feasible and less restrictive alternatives for
landlords, which alternatives thereby pose less risk of competitive
harm to renters.
284. RealPage's exclusionary conduct lacks a procompetitive
justification that offsets the harm caused by RealPage's
anticompetitive and unlawful conduct.
Fourth Claim for Relief, in the Alternative: Violation of Section 2 of
the Sherman Act Through Attempted Monopolization of the Commercial
Revenue Management Software Market
(By All Plaintiffs Against RealPage)
285. Plaintiffs incorporate the allegations of paragraphs 1 through
284 above.
286. Commercial revenue management software for conventional
multifamily housing rentals in the United States is a relevant
antitrust market.
287. RealPage has attempted to monopolize that market through
unlawful exclusionary conduct enhanced by its self-reinforcing data and
scale advantages. By amassing its massive reservoir of competitively
sensitive data from competing landlords and the follow-on benefits that
scale and its feedback effects provide in terms of blunting competition
among landlords, RealPage's conduct excludes commercial revenue
management rivals from competing on the merits in a lawful manner. As
such, it has increased, maintained, or protected RealPage's power.
288. RealPage's anticompetitive acts have harmed the competitive
process and reduced feasible and less restrictive alternatives for
landlords, which alternatives thereby pose less risk of competitive
harm to renters.
289. As inferred from the anticompetitive conduct described in
Sections IV and V, supra, RealPage has acted with a specific intent to
monopolize, and to eliminate effective competition in, the commercial
revenue management software market in the United States. There is a
dangerous probability that, unless restrained, RealPage will succeed in
monopolizing the commercial revenue management software market in
violation of Section 2 of the Sherman Act.
Fifth Claim for Relief: Violation of North Carolina Law
290. Plaintiff State of North Carolina incorporates the allegations
of Paragraphs 1 through 289 above.
291. Defendants engaged in the conduct alleged above while
operating their businesses in North Carolina markets, including, but
not limited to, the markets alleged in paragraphs 214, 216, 256, and
Appendices A and B. Defendants' anticompetitive conduct has affected
commerce in North Carolina to a substantial degree by harming the
competitive process and renters across the State including, but not
limited to, in the North Carolina markets identified in paragraphs 214,
216, 256, and Appendices A and B.
292. Defendants' acts as alleged in the First and Second claims for
reliefs stated in paragraphs 259-279 above, violate the North Carolina
Unfair or Deceptive Trade Practices Act in that they constitute
contracts in restraint of trade or commerce in North Carolina, and/or
acts and contracts in restraint of trade or commerce which violate the
principles of the common law. N.C.G.S. Sec. Sec. 75-1, 75-2.
293. Defendant Real Page's acts as alleged in the Third and Fourth
claims for relief stated in paragraphs 280-289, above, violate the
North Carolina Unfair or Deceptive Trade Practices Act, N.C.G.S. Sec.
75-1 et seq., in that they constitute unlawful monopolization of a part
of trade or commerce in North Carolina. N.C.G.S. Sec. 75-2.1.
Plaintiff State of North Carolina seeks the following remedies
available for claims under federal law and claims under N.C.G.S.
Sec. Sec. 75-1, 75-2, and 75-2.1, without limitation:
a. Injunctive and other equitable relief pursuant to Section 16 of
the Clayton Act, 15 U.S.C. 26, N.C.G.S. Sec. 75-14, and the common law
of North Carolina;
b. Civil penalties pursuant to N.C.G.S. Sec. 75-15.2, which
provides a penalty of up to $5,000 per violation;
c. Costs of suit, including expert witness fees, costs of
investigation, and attorney's fees pursuant to Section 16 of the
Clayton Act, 15 U.S.C. 26 and N.C.G.S. Sec. 75-16.1; and
d. Other remedies as the court may deem appropriate under the facts
and circumstances of the case.
Sixth Claim for Relief: Violation of California Law
295. The State of California incorporates the allegations of
Paragraphs 1 through 289 above.
296. Defendants' practices, as alleged above, violate the Sherman
Act sections 1 and 2 and therefore constitute unlawful business
practices under California's Unfair Competition Law (``UCL''), Cal.
Bus. & Prof. Code Sec. 17200, et seq.
297. Plaintiff State of California seeks the following:
a. injunctive relief and penalties pursuant to sections 17203 and
17206 of the UCL,
b. costs of suit, including expert witness fees, costs of
investigation, and attorney's fees pursuant to Section 16 of the
Clayton Act, 15 U.S.C. 26, and
c. other remedies as the court may deem appropriate under the facts
and circumstances of the case.
[[Page 43096]]
Seventh Claim for Relief: Violation of Colorado Law
298. Plaintiff State of Colorado repeats and re-alleges and
incorporates by reference Paragraphs 1 through 289 in this Complaint as
if fully set forth herein.
299. The acts alleged in the Complaint violate the Colorado
Antitrust Act, Sec. 6-4-101 et seq., including C.R.S. Sec. 6-4-104
and C.R.S. Sec. 6-4-105. These violations substantially affect the
people of Colorado and have impacts within the State of Colorado.
300. Each of the unlawful agreements, arrangements, or acts alleged
herein constitute at least one distinct violation of the Colorado
Antitrust Act within the meaning of C.R.S. Sec. 6-4-113.
301. Defendants' acts alleged herein constitute a continuous
pattern and practice of behavior within the meaning of C.R.S. Sec. 6-
4-113(2)(c).
302. Defendants' acts alleged herein were willful within the
meaning of C.R.S. Sec. 6-4-113(2)(d).
303. The State of Colorado seeks the following remedies under
federal law and the Colorado Antitrust Act, including, without
limitation:
a. Injunctive and other equitable relief pursuant to Section 16 of
the Clayton Act, 15 U.S.C. 26 and C.R.S. Sec. 6-4-112;
b. Civil penalties pursuant to C.R.S. Sec. 6-4-113 for each
violation of the Colorado Antitrust Act;
c. Costs and attorneys' fees, pursuant to Section 16 of the Clayton
Act, 15 U.S.C. 26, and C.R.S. Sec. 6-4-112(5); and
d. Other remedies as the Court may deem appropriate based on the
facts properly alleged and proven.
Eighth Claim for Relief: Violation of Connecticut Law
304. Plaintiff State of Connecticut, acting by and through its
Attorney General pursuant to Conn. Gen. Stat. Sec. 35-44a,
incorporates the allegations of paragraphs 1 through 289 above. The
State of Connecticut brings its state and federal law claims for relief
against all Defendants except Cortland.
305. The acts alleged in the Complaint also constitute violations
of the Connecticut Antitrust Act, Conn. Gen. Stat. Sec. 35-24 et seq.
These violations had impacts within the State of Connecticut and
substantially affected the citizens of Connecticut.
306. Plaintiff State of Connecticut seeks all remedies available
under federal law and the Connecticut Antitrust Act, including, without
limitation, the following:
a. Civil penalties pursuant to Conn. Gen. Stat. Sec. 35-38, which
provides that in any action instituted by the Attorney General, any
person who has been held to have violated any of the provisions of the
Connecticut Antitrust Act shall forfeit and pay to the state a civil
penalty of not more than one million dollars for each violation;
b. Injunctive and other equitable relief pursuant to Section 16 of
the Clayton Act, 15 U.S.C. 26, Conn. Gen. Stat. Sec. Sec. 35-34, 35-
44a;
c. Costs and fees including, without limitation, costs of
investigation, litigation, expert witness fees, and attorney's fees
pursuant to Section 16 of the Clayton Act, 15 U.S.C. 26, Conn. Gen.
Stat. Sec. Sec. 35-34, 35-44a; and
d. Other remedies as the Court may deem appropriate under the facts
and circumstances of the case.
Ninth Claim for Relief: Violation of Illinois Law
307. Plaintiff State of Illinois, acting by and through its
Attorney General, incorporates the allegations of paragraphs 1 through
289 above. The State of Illinois brings its state and federal law
claims for relief against all Defendants except Cortland.
308. The acts alleged in the Complaint violate the Illinois
Antitrust Act, 740 ILCS 10/1 et seq., including 740 ILCS 10/3(1), 740
ILCS 10/3(2), and 740 ILCS 10/3(3). These violations substantially
affect the people of Illinois and have impacts within the State of
Illinois.
309. The State of Illinois seeks all available remedies under
federal law and the Illinois Antitrust Act, including, without
limitation:
a. Injunctive and other equitable relief pursuant to Section 16 of
the Clayton Act, 15 U.S.C. 26; and 740 ILCS 10/7;
b. Civil penalties pursuant to 740 ILCS 10/7(4) for each violation
of the Illinois Antitrust Act;
c. Disgorgement, damages, and/or other equitable or monetary relief
pursuant to federal law including Section 4 of the Sherman Act, 15
U.S.C. 4, Section 4c of the Clayton Act, 15 U.S.C. 15c and state law
including 740 ILCS 10/7, and treble damages for injuries sustained,
directly or indirectly, by individuals residing in Illinois to their
property, pursuant to the State of Illinois' parens patriae authority
under 740 ILCS 10/7(2);
d. Costs and attorneys' fees, pursuant to Section 4c of the Clayton
Act, 15 U.S.C. 15c, Section 16 of the Clayton Act, 15 U.S.C. 26, 740
ILCS 10/7(2); and
e. Other remedies as the Court may deem appropriate on the basis of
the facts properly alleged and proven.
Tenth Claim for Relief: Violation of Massachusetts Law
310. Plaintiff Commonwealth of Massachusetts repeats, realleges,
and incorporates the allegations of paragraphs 1 through 289 above as
if fully set forth herein. The Commonwealth of Massachusetts brings its
state and federal law claims for relief against all Defendants except
Cortland.
311. The acts alleged in the aforementioned paragraphs of this
Complaint, including but not limited to unlawful agreements in
restraint of trade and unlawful monopolization, constitute unfair
methods of competition and/or unfair or deceptive acts or practices in
trade or commerce in violation of the Massachusetts Consumer Protection
Act, M.G.L c. 93A Sec. 2 et seq.
312. Defendants knew or should have known that their conduct
violated the Massachusetts Consumer Protection Act, M.G.L c. 93A Sec.
2 et seq.
313. Plaintiff Commonwealth of Massachusetts is entitled to and
seeks the following relief under M.G.L. c. 93A Sec. 4:
a. Injunctive and other equitable relief pursuant to M.G.L. c. 93A
Sec. 4;
b. Civil penalties of up to $5,000 per each violation committed by
the Defendants pursuant to M.G.L. c. 93A Sec. 4;
c. Costs and fees including, without limitation, costs of
investigation, litigation, and attorneys' fees pursuant to M.G.L. c.
93A Sec. 4; and
d. Other remedies as the court may deem appropriate under the facts
and circumstances of the case.
314. The Commonwealth of Massachusetts notified the Defendants of
this intended action at least five days prior to the commencement of
this action and gave the Defendants an opportunity to confer in
accordance with M.G. L. c. 93A Sec. 4.
Eleventh Claim for Relief: Violation of Oregon Law
315. Plaintiff State of Oregon, acting by and through its Attorney
General, incorporates the allegations of paragraphs 1 through 289
above. The State of Oregon brings its state and federal law claims for
relief against all Defendants except Cortland.
316. The acts alleged in the Complaint also constitute violations
of the Oregon Antitrust Law, Oregon Revised Statutes (``ORS'') 646.705
to ORS 646.836. These violations had impacts within the State of Oregon
and substantially affected the people of Oregon.
317. The State of Oregon appears in its sovereign or quasi-
sovereign
[[Page 43097]]
capacities and under its statutory, common law, and equitable powers,
and as parens patriae on behalf of natural persons residing in the
State of Oregon pursuant to ORS 646.775(1). The State of Oregon seeks
all remedies available under federal law and the Oregon Antitrust Law,
including, without limitation, the following:
a. Disgorgement and/or other equitable relief pursuant to federal
law including Section 4 of the Sherman Act, 15 U.S.C. 4, and state law
pursuant to ORS 646.770, and ORS 646.775;
b. Injunctive and other equitable relief pursuant to Section 16 of
the Clayton Act, 15 U.S.C. 26, ORS 646.760, ORS 646.770, and ORS
646.775;
c. Civil penalties pursuant to ORS 646.760(1) which provides that a
court may assess for the benefit of the state a civil penalty of not
more than $1,000,000 for each violation of the Oregon Antitrust Law,
d. Costs of suit, including expert witness fees, costs of
investigation, and attorney's fees pursuant to Section 16 of the
Clayton Act, 15 U.S.C. 26, ORS 646.760, ORS 646.770, ORS 646.775; and
e. Other remedies as the court may deem appropriate under the facts
and circumstances of the case.
Twelfth Claim for Relief: Violation of Tennessee Law
318. Plaintiff State of Tennessee incorporates the allegations of
paragraphs 1 through 289 above. The State of Tennessee brings its state
and federal law claims for relief against all Defendants except
Cortland.
319. Defendants engaged in the conduct described above,
individually and collectively, to thwart competition for multifamily
housing in Tennessee. This anticompetitive conduct in Tennessee harmed
thousands of multifamily renters across the state.
320. Defendants' business practices have caused a reduction in
competition in relevant Tennessee markets, including, but not limited
to, in the markets identified in paragraphs 214 and 216 and Appendices
A and B, and, as a result, Tennesseans have suffered anticompetitive
harms.
321. Accordingly, Defendants' actions violate the Tennessee Trade
Practices Act, Tenn. Code Ann. Sec. 47-25-101, as amended.
322. Defendant RealPage engaged in the conduct described above to
maintain its monopoly and exclude competing commercial revenue
management software competitors.
323. Accordingly, Defendant RealPage's actions violate the
Tennessee Trade Practices Act, Tenn. Code Ann. Sec. 47-25-102, as
amended.
324. This conduct has affected Tennessee trade and commerce to a
substantial degree.
325. To remedy this anticompetitive conduct, the Tennessee Attorney
General and Reporter seeks all remedies available to which it is
entitled under federal law and claims under Tenn. Code Ann. Sec. Sec.
47-25-101, 102, and 106, as amended, including, without limitation, the
following:
a. injunctive or other equitable relief; reasonable attorney fees,
costs, and expenses, pursuant to Section 16 of the Clayton Act, 15
U.S.C. 26, Tenn. Code Ann. Sec. 47-25-106(b), and the common law of
Tennessee;
b. civil penalties pursuant to Tenn. Code Ann. Sec. 47-25-106(g);
c. costs of suit, including expert witness fees, costs of
investigation, and attorney's fees pursuant to Section 16 of the
Clayton Act, 15 U.S.C. 26 and Tenn. Code Ann. Sec. 47-25-106(b); and
d. other legal and equitable remedies as the court may deem
appropriate and the interest of justice may require under the facts and
circumstances of the case.
Thirteenth Claim for Relief: Violation of Washington Law
326. The State of Washington incorporates the allegations in
Paragraphs 1 through 289, except for the portions of paragraphs 95, 96,
97, 117, 131, 171, and 228 that Washington was unable to review due to
confidentiality redactions. Washington reserves the right to adopt the
portions of those paragraphs which are later disclosed.
327. Washington brings its federal and state law claims for relief
against Defendants RealPage, Cushman & Wakefield, Pinnacle, Greystar,
and LivCor (``Washington Defendants'').
328. Washington Defendants engaged in the conduct alleged above
while operating their businesses in Washington. This anticompetitive
conduct in Washington harmed the competitive process and renters across
the State including in, but not limited to, the markets identified in
Appendices A and B.
329. The acts alleged in the paragraphs incorporated by the State
of Washington also constitute antitrust violations of the Washington
Consumer Protection Act under Wash. Rev. Code Sec. 19.86.030, which
declares unlawful every contract, combination, or conspiracy in
restraint of trade or commerce.
330. The acts alleged in the paragraphs incorporated by the State
of Washington also constitute antitrust violations of the Washington
Consumer Protection Act under Wash. Rev. Code Sec. 19.86.040, which
declares monopolization or attempts to monopolize unlawful.
331. Washington seeks the following remedies available under the
Washington Consumer Protection Act and federal law including, without
limitation, the following:
a. That the Court adjudge and decree that conduct alleged in the
complaint to be unlawful and in violation of the Washington Consumer
Protection Act, Wash. Rev. Code Sec. 19.86.030 and Sec. 19.86.040;
b. Injunctive and other equitable relief pursuant to Wash. Rev.
Code Sec. 19.86.080;
c. Damages including treble damages; disgorgement; and/or
restitution and any appropriate interest pursuant to federal law
including Sherman Act, 15 U.S.C. 4, 15c and pursuant to state law
including Wash. Rev. Code Sec. 19.86.080;
d. Civil penalties pursuant to Wash. Rev. Code Sec. 19.86.140;
e. Costs and attorney's fees and any appropriate interest on those
fees and costs pursuant to Sherman Act, 15 U.S.C. 15c and/or pursuant
to Wash. Rev. Code Sec. 19.86.080; and
f. Other remedies, including pre-judgement interest, as the court
may deem appropriate under the facts and circumstances of the case.
IX. Request for Relief
332. To remedy these illegal acts, Plaintiffs request that the
Court:
a. Adjudge and decree that Defendants have acted unlawfully to
restrain trade in conventional multifamily rental housing markets
across the United States in violation of Section 1 of the Sherman Act,
15 U.S.C. 1;
b. Adjust and decree that RealPage has acted unlawfully to
monopolize, or attempt to monopolize, the commercial revenue management
software market in the United States in violation of Section 2 of the
Sherman Act, 15 U.S.C. 2;
c. Enjoin Defendants from continuing to engage in the
anticompetitive practices described herein and from engaging in any
other practices with the same purpose and effect as the challenged
practices;
d. Enter any other preliminary or permanent relief necessary and
appropriate to restore competitive conditions in the markets affected
by Defendants' unlawful conduct;
e. Enter any additional relief the Court finds just and proper; and
f. Award Plaintiffs an amount equal to their costs, including
reasonable attorneys' fees, incurred in bringing this action.
[[Page 43098]]
X. Demand for a Jury Trial
333. Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs
demand a trial by jury of all issues properly triable to a jury in this
case.
Dated this 7th day of January, 2025.
Respectfully submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA:
DOHA MEKKI
Acting Assistant Attorney General
RYAN DANKS
Director of Civil Enforcement
CATHERINE K. DICK
Acting Director of Litigation
GEORGE C. NIERLICH
Deputy Director of Civil Enforcement
AARON HOAG
Chief
Technology & Digital Platforms Section
DANIELLE HAUCK
Assistant Chief
Technology & Digital Platforms Section
ADAM SEVERT
Assistant Chief
Technology & Digital Platforms Section
-----------------------------------------------------------------------
HENRY C. SU
Senior Litigation Counsel
-----------------------------------------------------------------------
DAVID A. GEIGER
SARAH M. BARTELS
MARKUS A. BRAZILL
JESSICA BUTLER-ARKOW
GRANT M. FERGUSSON
IAN HOFFMAN
JOHN J. HOGAN
CLAIRE M. MADDOX
ARSHIA NAJAFI
KRIS ANTHONY P[Eacute]REZ HICKS
JARIEL A. RENDELL
CHRISTINE SOMMER
ANDREW TISINGER
Attorneys
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 307-6200
Email: [email protected]
* LEAD ATTORNEY TO BE NOTICED
FOR PLAINTIFF STATE OF NORTH CAROLINA:
JEFF JACKSON
Attorney General of North Carolina
DANIEL P. MOSTELLER
Associate Deputy Attorney General
-----------------------------------------------------------------------
KUNAL J. CHOKSI
Special Deputy Attorney General
N.C. Bar. No. 55666
JESSICA V. SUTTON
Special Deputy Attorney General
N.C. Bar No. 41652
North Carolina Department of Justice
114 W Edenton Street
Raleigh, NC 27603
Telephone: 919-716-6032
Email: [email protected]
Attorneys for Plaintiff State of North Carolina
FOR PLAINTIFF STATE OF CALIFORNIA:
ROB BONTA
Attorney General of California
PAULA BLIZZARD
Senior Assistant Attorney General
NATALIE MANZO
Supervising Deputy Attorney General
-----------------------------------------------------------------------
DOAN-PHUONG (PAMELA) PHAM
QUYEN TOLAND
Deputy Attorneys General
Office of the Attorney General
California Department of Justice
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Tel: (213) 269-6000
Email: [email protected]
Attorneys for Plaintiff State of California
FOR PLAINTIFF STATE OF COLORADO:
PHILIP J. WEISER
Attorney General
-----------------------------------------------------------------------
ELIZABETH W. HEREFORD
Assistant Attorney General
BRYN WILLIAMS
First Assistant Attorney General
Colorado Department of Law
Office of the Attorney General
Ralph L. Carr Judicial Center
1300 Broadway, 7th Floor
Denver, CO 80203
Telephone: (720) 508-6000
Email: [email protected]
Attorneys for Plaintiff State of Colorado
FOR PLAINTIFF STATE OF CONNECTICUT:
WILLIAM TONG
Attorney General of Connecticut
JEREMY PEARLMAN
Associate Attorney General
NICOLE DEMERS
Deputy Associate Attorney General
-----------------------------------------------------------------------
JULI[Aacute]N A. QUI[Ntilde]ONES REYES
Assistant Attorney General
Office of the Connecticut Attorney General
165 Capitol Avenue
Hartford, CT 06106
Telephone: (860) 808-5030
Email: [email protected]
Attorney for Plaintiff State of Connecticut
FOR PLAINTIFF STATE OF ILLINOIS:
KWAME RAOUL
Attorney General of Illinois
-----------------------------------------------------------------------
DANIEL BETANCOURT, Assistant Attorney General
JENNIFER M. CORONEL, Assistant Attorney General
PAUL J. HARPER, Assistant Attorney General
Office of the Illinois Attorney General
115 S LaSalle St., Floor 23
Chicago, IL 60603
Tel: (773) 758-4634
Email: [email protected]
Attorneys for Plaintiff State of Illinois
Notices of Special Appearance forthcoming
FOR PLAINTIFF COMMONWEALTH OF MASSACHUSETTS:
ANDREA JOY CAMPBELL
Attorney General
KATHERINE W. KREMS-----------------------------------------------------
Assistant Attorney General
JENNIFER E. GREANEY
Assistant Attorney General, Deputy Chief
Antitrust Division
Office of the Massachusetts Attorney General
One Ashburton Place
18th Floor
Boston, Massachusetts 02108
(617) 963-2189
[email protected]
[email protected]
Attorneys for Plaintiff Commonwealth of Massachusetts
Notices of Special Appearance forthcoming
FOR PLAINTIFF STATE OF MINNESOTA:
KEITH ELLISON
Attorney General of Minnesota
-----------------------------------------------------------------------
KATHERINE A. MOERKE
ELIZABETH ODETTE
SARAH DOKTORI
Assistant Attorneys General
Office of the Minnesota Attorney General
445 Minnesota Street, Suite 600
St. Paul, MN 55101-2130
[email protected]
Telephone: (651) 757-1288
[email protected]
Telephone: (651) 728-7208
[email protected]
Telephone: (651) 583-6694
Attorneys for Plaintiff State of Minnesota
FOR PLAINTIFF STATE OF OREGON:
DAN RAYFIELD
Attorney General of Oregon
-----------------------------------------------------------------------
Timothy D. Smith
Attorney-in-Charge
Antitrust, False Claims, & Privacy Section
Oregon Department of Justice
100 SW Market St., Portland OR 97201
503.798.3297 [verbar] [email protected]
Attorneys for Plaintiff State of Oregon
FOR PLAINTIFF STATE OF TENNESSEE:
JONATHAN SKRMETTI
Attorney General of Tennessee
-----------------------------------------------------------------------
S. ETHAN BOWERS
Senior Assistant Attorney General
DANIEL LYNCH
Assistant Attorney General
Office of the Tennessee Attorney General
P.O. Box 20207
Nashville, Tennessee 37202
6.15.837.5582 [verbar] [email protected]
Attorneys for State of Tennessee
FOR PLAINTIFF STATE OF WASHINGTON:
ROBERT W. FERGUSON
Attorney General
-----------------------------------------------------------------------
BRIAN H. ROWE
RACHEL A. LUMEN
SARAH SMITH-LEVY
KENDALL SCOTT COWLES
Assistant Attorneys General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744
[email protected]
[email protected]
[email protected]
[email protected]
Attorney for Plaintiff State of Washington
BILLING CODE 4410-11-P
[[Page 43099]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.005
[[Page 43100]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.006
[[Page 43101]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.007
[[Page 43102]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.008
[[Page 43103]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.009
[[Page 43104]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.010
[[Page 43105]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.011
[[Page 43106]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.012
[[Page 43107]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.013
[[Page 43108]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.014
[[Page 43109]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.015
[[Page 43110]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.016
[[Page 43111]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.017
[[Page 43112]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.018
[[Page 43113]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.019
[[Page 43114]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.020
[[Page 43115]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.021
[[Page 43116]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.022
[[Page 43117]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.023
[[Page 43118]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.024
[[Page 43119]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.025
[[Page 43120]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.026
[[Page 43121]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.027
[[Page 43122]]
[GRAPHIC] [TIFF OMITTED] TN05SE25.028
BILLING CODE 4410-11-C
United States District Court for the Middle District of North Carolina
UNITED STATES OF AMERICA, Plaintiff, v. GREYSTAR MANAGEMENT
SERVICES, LLC, Defendant.
No. 1:24-cv-00710-WLO-JLW
Proposed Final Judgment
Whereas, Plaintiff, United States of America, filed its Complaint
on January 7, 2025;
And whereas, the United States and Defendant, Greystar Management
Services, LLC, have consented to entry of this Final Judgment without
the taking of testimony, without trial or adjudication of any issue of
fact or law, and without this Final Judgment constituting any evidence
against or admission by any party relating to any issue of fact or law;
And whereas, Defendant agrees to undertake certain actions and
refrain from certain conduct to remedy the loss of competition alleged
in the Complaint;
And whereas, Defendant represents that the relief required by this
Final Judgment can and will be made and that Defendant will not later
raise a claim of hardship or difficulty as grounds for asking the Court
to modify any provision of this Final Judgment;
Now therefore, it is ordered, adjudged, and decreed:
I. Jurisdiction
The Court has jurisdiction over the subject matter of, and each of
the parties to, this action. The Complaint states a claim upon which
relief may be granted against Defendant under Section 1 of the Sherman
Act, 15 U.S.C. 1.
II. Definitions
As used in this Final Judgment:
A. ``Greystar'' or ``Defendant'' means Defendant Greystar
Management Services, LLC, a Delaware limited liability company with its
headquarters in Charleston, South Carolina, and all of its direct and
indirect subsidiaries, divisions, groups, affiliates, parents,
partnerships, and joint ventures engaged in the management or ownership
of multifamily rental properties in the United States and its
territories, their successors and assigns, and their directors,
officers, managers, agents, and employees.
B. ``Competitively Sensitive Information'' means property-specific
data or information (whether past, present, or prospective) which,
individually or when aggregated with such data or information from
other properties, (1) could be reasonably used to determine current or
future rental supply, demand, or pricing at a property or of any
property's units, including but not limited to executed rents, rental
price concessions or discounts, guest traffic, guest applications,
occupancy or vacancy, lease terms or lease expirations; (2) relates to
the Property Owner's or Property Manager's use of settings or user-
specified parameters within Revenue Management Products with respect to
such property or properties; or (3) relates to the Property
[[Page 43123]]
Owner's or Property Manager's rental pricing amount, formula, or
strategy, including rental price concessions or discounts, in each
case, with respect to such property or properties.
C. ``Cooperation Subject Matter'' means Greystar's use of
RealPage's Revenue Management Products, prohibited conduct described in
Paragraph V.A, and the claims alleged in United States et al. v.
RealPage et al. (currently docketed as No. 1:24-cv-00710 in the Middle
District of North Carolina), and includes conduct as well as the
effects of conduct.
D. ``External Nonpublic Data'' means all Nonpublic Data from any
Person other than Greystar. It does not include data from a Greystar
Property.
E. ``Greystar Property'' means a multifamily rental property,
located within the United States and its territories, owned or managed
by Greystar or its agents (collectively referred to as ``Greystar
Properties'').
F. ``Including'' means including, but not limited to.
G. ``Model Training'' means the process of analyzing data,
including by machine learning or regression analysis, to create or
adjust the parameters of a model or algorithm to improve the accuracy
of the model's or algorithm's predictions. Model Training includes the
training of a model or algorithm to predict supply or demand at a
particular property, which is then used during Runtime Operation.
H. ``Nonpublic Data'' means any Competitively Sensitive Information
that is not Public Data.
I. ``Person'' means any natural person, corporate entity,
partnership, association, joint venture, or trust.
J. ``Property Owner(s)'' means any Person who (directly or
indirectly) owns or controls a multifamily rental property or that
Person's agent; multifamily rental properties have the same Property
Owner if they are (directly or indirectly) owned or controlled by the
same Person.
K. ``Property Manager(s)'' means any Person who manages a
multifamily rental property or that Person's agent.
L. ``Pseudocode'' means any description of the steps in an
algorithm or other software program in plain or natural language.
M. ``Public Data'' means information on a rental unit's asking
price (including publicly offered concessions), amenities, and
availability that is readily accessible to the general public, such as
on the property's website, at a physical building, in brochures, or on
an internet listing service. Public Data includes information on a
rental unit's asking price, concessions, amenities, and availability
provided by a Property Manager or a Property Owner to any natural
person who reasonably presents himself as a prospective renter. Public
Data does not include any Competitively Sensitive Information obtained
through communications between competitors.
N. ``RealPage'' means RealPage, Inc., a Delaware corporation with
its headquarters in Richardson, Texas.
O. ``RealPage Meeting(s)'' means RealPage steering committees,
RealPage subcommittees, RealPage user groups, RealPage Idea Exchange,
or any variation of these meetings. For avoidance of doubt, a RealPage
Meeting does not include any communications between Greystar and the
Property Owner of a Greystar Property or any other Person providing
services to that Greystar Property, or any software feedback provided
solely to RealPage that is not otherwise shared by Greystar with other
Property Managers or Property Owners.
P. ``Revenue Management Product(s)'' means any software or third-
party service, including software as a service, that generates rental
prices or rental pricing recommendations for multifamily rental
properties. For avoidance of doubt, a Revenue Management Product does
not include general purpose spreadsheet software like Microsoft Excel.
Q. ``Runtime Operation'' means any action taken by a Revenue
Management Product while it runs, including generating rental prices or
rental pricing recommendations for any unit or set of units at a
property. Runtime Operation does not include Model Training.
R. ``Settled Antitrust Claims'' means any civil federal antitrust
claim by the United States arising from Defendant's conduct accruing
before the filing of the complaint in this action relating to (1)
Revenue Management Products, including RealPage Revenue Management
Products that use competitors' Competitively Sensitive Information, as
well as (2) communications described by Paragraph V.A.
S. ``States'' means the states, commonwealths, and territories of
the United States of America, as well as the District of Columbia.
III. Applicability
This Final Judgment applies to Defendant, as defined above,
Defendant's officers, agents, servants, employees, and attorneys, and
all other persons in active concert or participation with Defendant who
receive actual notice of this Final Judgment.
IV. Use of Revenue Management Software
A. Beginning April 1, 2026 or 180 days after entry of the
Stipulation and Order, whichever is earlier, Greystar must not, within
the United States and its territories:
1. license or use any Revenue Management Product that: (i) uses
External Nonpublic Data (other than Nonpublic Data of the Property
Owner of the subject Greystar Property) in its Runtime Operation to
generate rental prices or rental pricing recommendations for a Greystar
Property; (ii) uses Nonpublic Data from a Greystar Property in its
Runtime Operation to generate rental prices or rental pricing
recommendations for any other Property Manager or Property Owner
(unless the Property Owner of the non-Greystar Property is the same as
the Property Owner of the Greystar Property from which the data arises
or to which it relates); (iii) discloses in any way Nonpublic Data from
a Greystar Property to any other Property Manager or Property Owner
(unless the Property Owner of the non-Greystar Property is the same as
the Property Owner of the Greystar Property from which the data arises
or to which it relates); (iv) pools or combines Nonpublic Data from
Greystar Properties that have different Property Owners; or (v)
contains or uses a model or algorithm for which Nonpublic Data (other
than Nonpublic Data of the Property Owner of the subject Greystar
Property) was used during or as a part of Model Training;
2. license or use any commercially available Revenue Management
Product that: (i) incorporates a rental price floor or a limit on
rental price recommendation decreases (excluding a rental price floor,
or limit on rental price decreases, that Greystar or the Property Owner
selects and is not based on Nonpublic Data other than Nonpublic Data of
the Property Owner of the subject Greystar Property); or (ii) requires
Greystar to accept, or provides any economic incentives for Greystar to
accept, any recommended rental prices or range of prices; or
3. agree (expressly or tacitly) with any other Property Owner or
Non-Greystar Property Manager to use a particular Revenue Management
Product (or the utilities or functionalities thereof) or require any
other Person to use a particular Revenue Management Product (or the
utilities or functionalities thereof). Greystar is not prohibited by
the preceding sentence from using a particular Revenue Management
Product at a particular property pursuant to an agreement with
[[Page 43124]]
another Person who is the Property Owner or who, along with Greystar,
provides services to that particular property on behalf of the Property
Owner, provided that the Revenue Management Product complies with
Paragraphs IV.A.1-2.
B. If management responsibilities or ownership of a property within
the United States or its territories is transferred from another
Property Manager or Property Owner to Greystar, then Greystar will have
90 days from the date of transfer to comply with the requirements of
Paragraph IV.A. for the transferred property.
C. By April 1, 2026 or within 180 days after entry of the
Stipulation and Order, whichever is earlier, Defendant must notify the
United States, in writing, of any commercially available Revenue
Management Product that it licenses or uses at any Greystar Property.
Thereafter, if Defendant intends to license or use any other
commercially available Revenue Management Product at any Greystar
Property, Defendant must first notify the United States, in writing, of
its intention to license or use such a commercially available Revenue
Management Product 30 calendar days prior to licensing or using the
commercially available Revenue Management Product.
D. Notwithstanding Paragraph IV.A, Greystar may license or use a
Revenue Management Product that complies with the terms of an agreed
Final Judgment between the United States and RealPage in United States
et al. v. RealPage et al. (currently docketed as No. 1:24-cv-00710 in
the Middle District of North Carolina) (``RealPage Final Judgment'').
E. Beginning April 1, 2026 or 180 days after entry of the
Stipulation and Order, whichever is earlier:
1. After entry by the Court of a RealPage Final Judgment, Defendant
may license or use a RealPage Revenue Management Product at any
Greystar Property without the need to obtain certification as required
in this Paragraph IV.E.
2. If Defendant licenses or uses a commercially available Revenue
Management Product from a Person other than RealPage or a reseller of a
RealPage Revenue Management Product at any Greystar Property, or if
Defendant licenses or uses a RealPage Revenue Management Product at any
Greystar Property after a RealPage Final Judgment is filed but before
entry by the Court, Defendant must secure and submit to the United
States a certification from the vendor of the Revenue Management
Product that the Revenue Management Product complies with the
requirements in Paragraphs IV.A.1-2 or complies with the requirements
for Revenue Management Products established in a RealPage Final
Judgment.
3. If Defendant licenses or uses a RealPage Revenue Management
Product at any Greystar Property in the absence of a RealPage Final
Judgment, Defendant must provide to the United States a certification
from a Monitor appointed pursuant to Section VIII that the RealPage
Revenue Management product complies with the requirements in Paragraph
IV.A.1-2. If the Monitor has not yet been appointed, Defendant will
have 90 days following appointment of the Monitor, subject to extension
by the United States in its sole discretion, to obtain any
certification required pursuant to this Paragraph IV.E.
V. Other Prohibited Conduct
A. Greystar must not, within the United States and its territories,
as part of setting rental prices or generating rental pricing
recommendations for any Greystar Property: (i) disclose Nonpublic Data
to any other Property Manager or Property Owner; (ii) solicit External
Nonpublic Data from any other Property Manager or Property Owner; or
(iii) use External Nonpublic Data obtained from another Property
Manager or Property Owner. Nothing in this Paragraph shall apply to
communications between Greystar and the Property Owner of a Greystar
Property, or any other Person providing services to that Greystar
Property for whom the disclosure of Nonpublic Data is necessary to
provide such services. For avoidance of doubt, the restrictions set
forth in this Paragraph apply to External Nonpublic Data and Nonpublic
Data obtained through any form, whether directly or through an
intermediary, including call arounds or market surveys, in-person
meetings, calls, text messages, chat communications, emails, surveys,
spreadsheets, shared documents (e.g., Google documents and SharePoint
documents), industry meetings (e.g., user groups), online fora, private
meetings, Revenue Management Product, or information-exchange service.
B. Defendant will not attend or participate in any RealPage
Meetings. If Greystar attends or participates in a RealPage Meeting it
will report such meeting within 30 days to the United States. Defendant
must identify the date, time, and location of the meeting, identify all
participants in that meeting, provide a description of the content of
the meeting, provide a description of any document shown during the
meeting, produce all documents received or provided by Defendant during
the meeting, and produce any chats, recordings, or documents associated
with the meeting.
C. Except for the rental prices set at any Greystar Property while
that Property used a RealPage Revenue Management Product, Greystar must
not, within the United States and its territories, use or access, as
part of setting rental prices or generating pricing recommendations for
any Greystar Property, any Nonpublic Data (other than Nonpublic Data of
the Property Owner of the subject Greystar Property), or data derived
from RealPage that used or relied on such Nonpublic Data, in Greystar's
possession, custody, or control as of entry of the Stipulation and
Order, acquired through any means. Within 30 days of entry of the
Stipulation and Order, Defendant must identify to the United States in
writing the existence and location of any structured data set
containing such data. For avoidance of doubt, the proscriptions in this
Paragraph do not apply to data for Greystar Properties maintained in
OneSite.
VI. Antitrust Compliance
A. Within 30 days of entry of the Stipulation and Order, Defendant
must submit a written antitrust compliance policy for approval by the
Division in its sole discretion, that complies with the obligations set
forth in this Final Judgment, including the prohibitions in Sections IV
and V. Defendant must annually train all employees on this written
policy.
B. Within 30 days of entry of the Stipulation and Order, Defendant
must designate an antitrust compliance officer, who will be responsible
for implementing and enforcing Defendant's antitrust compliance policy
and annual training required by Paragraph VI.A. Defendant must identify
to the United States the antitrust compliance officer's name, business
address, telephone number, and email address. Within forty-five (45)
days of a vacancy in Defendant's antitrust compliance officer position,
Defendant must appoint a replacement and must identify to the United
States the replacement's name, business address, telephone number, and
email address. Defendant's initial and replacement appointment of an
antitrust compliance officer is subject to the approval of the United
States in its sole discretion. Defendant is responsible for all costs
and expenses related to the antitrust compliance officer.
C. On an annual basis beginning April 1, 2026 or 180 calendar days
after entry
[[Page 43125]]
of the Stipulation and Order, whichever is earlier, Defendant must:
1. submit to the Antitrust Division a certification from the
General Counsel of Defendant's U.S. property management business
attesting under penalty of perjury that (i) Defendant has established
and maintained the antitrust compliance policy and annual training
required by Paragraph VI.A; (ii) Defendant has complied with the
attestation requirement in Paragraph VI.C.2; and (iii) the vendors of
any Revenue Management Products licensed or used by Greystar Properties
have provided the certification from the vendor as required by
Paragraph VI.C.3;
2. require all Defendant's employees engaged in or overseeing
Greystar's revenue or property management of multifamily rental
properties in the United States and its territories to attest under
penalty of perjury that they have complied with Paragraphs IV.A.3, V.A,
and V.B;
3. if required under this Final Judgment, including Paragraph IV.E,
obtain and submit to the Antitrust Division a certification, as
described in Paragraph IV.E, that each Revenue Management Product that
Greystar licenses or uses complies with Paragraphs IV.A.1-2; and
4. provide the Antitrust Division a report that identifies for each
Greystar Property that uses a commercially available Revenue Management
Product: (1) the name of the Property Owner, (2) any Revenue Management
Product used within the preceding twelve months for that Greystar
Property, (3) whether Greystar or the Property Owner is responsible for
setting rental prices for that Greystar Property, and (4) whether
Greystar provides revenue management services for that Greystar
Property.
VII. Cooperation
A. Subject to reaching a settlement with all States that, as of the
entry of the Stipulation and Order, are plaintiffs in United States et
al. v. RealPage et al. (currently docketed as No. 1:24-cv-00710 in the
Middle District of North Carolina), Defendant must cooperate fully and
truthfully with the United States in any civil investigation or civil
litigation the United States brings or has brought relating to the
Cooperation Subject Matter. Defendant must use its best efforts to
ensure that all current and former officers, directors, employees, and
agents also fully and promptly cooperate with the United States.
Defendant's cooperation must include:
1. making up to 10 employees available for voluntary interviews for
up to 40 hours total at the request of the United States relating to
Section 2 claims alleged in United States et al. v. RealPage et al.
(currently docketed as No. 1:24-cv-00710 in the Middle District of
North Carolina) and considering reasonable requests for interviews of
additional employees;
2. providing full and truthful written or oral testimony in
deposition, trial, or other proceeding relating to the Cooperation
Subject Matter and making witnesses available to the United States upon
reasonable notice before any such testimony; and
3. providing proffers, which may be made by counsel for Defendant,
describing Defendant's knowledge of, and evidence relating to, the
Section 2 claims alleged in United States et. al. v. RealPage et.al.
(currently docketed as No. 1:24-cv-00710 in the Middle District of
North Carolina).
B. Defendant must:
1. within 30 days of receiving a written request (whether formal or
informal) from the United States for documents, information, or other
material relating to the Cooperation Subject Matter (or whatever
additional time the Division grants in its sole discretion), produce to
the United States all responsive documents, information, and other
materials, wherever located, not protected under the attorney-client
privilege or the work-product doctrine, in the possession, custody, or
control of Defendant or its agents, as well as a log of any responsive
documents, information, or other materials that were not provided,
including an explanation of the basis for withholding such materials,
and authenticating or otherwise assisting with establishing the
evidentiary foundation of any documents Defendant produced or produces
to the United States; and
2. take all necessary steps to preserve all documents, information,
and other materials relating to the Cooperation Subject Matter until
the United States provides written notice to Defendant that its
obligation to do so has expired.
C. Subject to Defendant's full, truthful, and continuing
cooperation, as required under Paragraphs VII.A-B, Greystar is fully
and finally discharged and released from Settled Antitrust Claims.
D. Nothing in Paragraphs VII.A-B affects Defendant's obligation to
respond to any formal discovery requests in litigation or a civil
investigative demand issued by the United States.
VIII. Appointment of Monitor
A. Defendant will not be subject to a Monitor if by April 1, 2026,
all commercially available Revenue Management Products that Defendant
licenses or uses at Greystar Properties have been certified pursuant
to, or are otherwise compliant with, Paragraph IV.E.
B. However, upon application of the United States, which Defendant
may not oppose, the Court will appoint a Monitor selected by the United
States and approved by the Court if:
1. Defendant licenses or uses any commercially available Revenue
Management Product that has not been certified pursuant to, or is not
otherwise compliant with, Paragraph IV.E, at any Greystar Property
after April 1, 2026, or
2. a Court finds that Greystar has violated any other term of the
Final Judgment.
C. Defendant may propose a pool of three candidates for the Monitor
appointment to the United States and the United States may consider
Defendant's perspectives on the proposed candidates or any other
candidates identified by the United States. The United States will
retain the right, in its sole discretion, either to select the Monitor
from among the three candidates proposed by Defendant or to select a
different candidate. Once approved, the Monitor should be considered by
the United States and Defendant to be an arm and representative of the
Court. The Monitor will have no responsibility for operation of the
Defendant's business. No attorney-client relationship will be formed
between Defendant and the Monitor.
D. The Monitor will have the authority to take such steps as, in
the Monitor's discretion and the United States' view, may be necessary
to accomplish the Monitor's responsibilities set forth in Paragraph
VIII.G. The Monitor may seek information from Defendant's personnel,
including in-house counsel, compliance personnel, and internal
auditors. Defendant will establish a policy, annually communicated to
all employees, that employees may disclose any information to the
Monitor without reprisal for such disclosure. Defendant must not
retaliate against any employee or third party for disclosing
information to the Monitor.
E. Defendant may not object to actions taken by the Monitor in
fulfillment of the Monitor's responsibilities under any Order of the
Court on any ground other than malfeasance by the Monitor.
Disagreements between the Monitor and Defendant related to the scope of
the Monitor's responsibilities do not constitute malfeasance.
Objections by Defendant must be conveyed in writing to the United
States and the Monitor within 10 calendar days of the Monitor's
[[Page 43126]]
action that gives rise to Defendant's objection, or else Defendant will
have waived any such objections.
F. Defendant must use best efforts to cooperate fully with the
Monitor and to assist the Monitor with its responsibilities under this
Final Judgment. Subject to reasonable protection for trade secrets,
other confidential research, development, or commercial information, or
any applicable privileges, Defendant must provide the Monitor and
agents or consultants retained by the Monitor with full and complete
access to all personnel (current and former), agents, consultants,
books, records, and facilities. Defendant may not take any action to
interfere with, or to impede accomplishment of, the Monitor's
responsibilities.
G. The Monitor will have the power and authority to monitor
Defendant's compliance with the terms of this Final Judgment entered by
the Court, as follows, and will have other powers as the Court deems
appropriate: (i) to obtain and review Defendant's books, records, and
documents relating to Defendant's compliance with the Final Judgment;
(ii) to interview Defendant's officers, employees, and agents; and
(iii) to make annual written reports to the Division, with the first
report due six months after the Monitor's work plan is approved under
Paragraph VIII.N, which process will include such monitoring and
verification throughout the monitorship period as necessary to
establish, that:
1. Defendant has complied with the obligations set forth in
Paragraphs IV.A-B and V.A;
2. employees (including supervisors) functioning as internal
revenue managers have complied with the obligations set forth in
Paragraphs IV.A.3, V.A, and V.B; and
3. a selection of other local, regional, or supervisory employees
of Defendant who manage property operations (not to exceed 15
annually), as designated by the Monitor, have complied with the
obligations set forth in Paragraphs IV.A.3, V.A, and V.B.
H. If the Monitor learns of any potential violation of the Final
Judgment by Defendant's officers, employees, or agents, the Monitor
must promptly disclose to the United States the nature and extent of
the potential violation and the United States may require, at its sole
discretion and without prejudice to any other remedy available for any
violation of this Final Judgment, that the Monitor conduct additional
investigation and verification of compliance with this Final Judgment
beyond any limits otherwise provided by this Section.
I. The Monitor will serve at the cost and expense of Defendant
pursuant to a written agreement with Defendant, on terms and
conditions, including confidentiality requirements and conflict of
interest certifications, approved by the United States in its sole
discretion. If the Monitor and Defendant are unable to reach such a
written agreement within 14 calendar days of the Court's appointment of
the Monitor, or if the United States, in its sole discretion, declines
to approve the proposed written agreement, the United States, in its
sole discretion, may take appropriate action, including making a
recommendation as to the Monitor's costs and expenses to the Court,
which may set the terms and conditions for the Monitor's costs and
expenses.
J. The Monitor may hire, at the cost and expense of Defendant, any
agents and consultants that are reasonably necessary in the Monitor's
judgment to assist with the Monitor's duties. These agents or
consultants will be directed by, and solely accountable to, the Monitor
and will serve on terms and conditions, including confidentiality
requirements and conflict-of-interest certifications, approved by the
United States in its sole discretion. Within three business days of
hiring any agents or consultants, the Monitor must provide written
notice of the hiring and the rate of compensation to Defendant and the
United States.
K. The compensation of the Monitor and agents or consultants
retained by the Monitor must be on reasonable and customary terms
commensurate with the individuals' experience and responsibilities.
L. The Monitor must account for all costs and expenses incurred.
M. Defendant's failure to promptly pay the Monitor's accounted-for
costs and expenses, including for agents and consultants, will
constitute a violation of this Final Judgment and may result in
sanctions imposed by the Court. If Defendant disputes any part of the
Monitor's accounted-for costs and expenses, Defendant must establish an
escrow account into which Defendant must pay the disputed costs and
expenses until the dispute is resolved.
N. Within 30 days after appointment of the Monitor by the Court,
and on a yearly basis thereafter, the Monitor must provide to the
United States and Defendant a proposed written work plan. Defendant may
provide comments on the proposed written work plan to the United States
and the Monitor within 14 calendar days after receipt of the proposed
written work plan, after which the Monitor must produce a final work
plan to the United States and Defendant, for approval by the United
States in its sole discretion. Any disputes between Defendant and the
Monitor with respect to any written work plan will be decided by the
United States in its sole discretion. The United States retains the
right, in its sole discretion, to request changes or additions to a
work plan at any time. If the United States determines that the Monitor
is exceeding its authority, not acting diligently or in a reasonably
cost-effective manner, or if the Monitor becomes unable to continue in
its role for any reason, the United States may recommend that the Court
appoint a substitute.
O. Once appointed, the Monitor will serve until:
1. the expiration of the Final Judgment; or
2. if a Monitor has been appointed pursuant to Paragraph VIII.B.1,
the United States will move the Court to terminate the monitorship upon
the United States' determination that Defendant complies with the
requirements in Paragraph IV.E.
IX. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment or related orders or determining whether this Final
Judgment should be modified or vacated, upon written request of an
authorized representative of the Assistant Attorney General for the
Antitrust Division, and reasonable notice to Defendant, Defendant must
permit, from time to time and subject to legally recognized privileges,
authorized representatives, including agents retained by the United
States:
1. to have access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide, no later than 30 days after receiving a written request
(whether formal or informal) from the United States, electronic copies
of all books, ledgers, accounts, records, data, and documents in the
possession, custody, or control of Defendant relating to any matters
contained in this Final Judgment; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual counsel
present, relating to any matters contained in this Final Judgment. The
interviews must be subject to the reasonable convenience of the
interviewee and without restraint or interference by Defendant.
B. For the purposes of determining or securing compliance with this
Final
[[Page 43127]]
Judgment or related orders or determining whether this Final Judgment
should be modified or vacated, upon the written request of an
authorized representative of the Assistant Attorney General for the
Antitrust Division, Defendant must submit written reports or respond to
written interrogatories, under oath if requested, relating to any
matters contained in this Final Judgment.
C. If Greystar uses an internal Revenue Management Product, the
United States will have the right for the duration of the Term of this
Final Judgment to:
1. obtain documents sufficient to show how Greystar's internal
Revenue Management Product is trained and how it determines prices for
Greystar Properties during its Runtime Operation and changes to these
processes.
2. obtain and inspect at an Antitrust Division office, or at
another location at the Division's discretion, the code and Pseudocode
of the internal Revenue Management Product to ensure compliance with
Paragraph IV.A.1. Greystar will be responsible for the costs and
expenses associated with said inspection once annually.
X. Public Disclosure
A. No information or documents obtained pursuant to any provision
or this Final Judgment, including reports the Monitor provides to the
United States pursuant to Paragraph VIII.G, may be divulged by the
United States or the Monitor to any person other than an authorized
representative of the executive branch of the United States, except in
the course of legal proceedings to which the United States is a party,
including grand-jury proceedings, or as otherwise required by law.
B. In the event that the Monitor should receive a subpoena, court
order, or other court process seeking production of information or
documents obtained pursuant to any provision in this Final Judgment,
including reports the Monitor provides to the United States pursuant to
Paragraph VIII.G, the United States must notify Defendant prior to any
disclosure.
C. In the event of a request by a third party, pursuant to the
Freedom of Information Act, 5 U.S.C. 552, for disclosure of information
obtained pursuant to any provision of this Final Judgment, the
Antitrust Division will act in accordance with that statute, and the
Department of Justice regulations at 28 CFR part 16, including the
provision on confidential commercial information, at 28 CFR 16.7.
Defendant, when submitting information to the Antitrust Division,
should designate the confidential commercial information portions of
all applicable documents and information under 28 CFR 16.7.
Designations of confidentiality expire 10 years after submission,
``unless the submitter requests and provides justification for a longer
designation period.'' See 28 CFR 16.7(b).
D. If at the time that Defendant furnishes information or documents
to the United States pursuant to any provision of this Final Judgment,
Defendant represents and identifies in writing information or documents
for which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure, and the Defendant marks each
pertinent page of such material ``Subject to claim of protection under
Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,'' the United
States must give Defendant 10 calendar days' notice before divulging
the material in any legal proceeding (other than a grand jury
proceeding).
XI. Retention of Jurisdiction
The Court retains jurisdiction to enable any party to this Final
Judgment to apply to the Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XII. Enforcement of Final Judgment
A. The United States retains and reserves all rights to enforce the
provisions of this Final Judgment, including the right to seek an order
of contempt from the Court. Defendant agrees that in a civil contempt
action, a motion to show cause, or a similar action brought by the
United States relating to an alleged violation of this Final Judgment,
the United States may establish a violation of this Final Judgment and
the appropriateness of a remedy therefor by a preponderance of the
evidence, and Defendant waives any argument that a different standard
of proof should apply.
B. This Final Judgment should be interpreted to give full effect to
the procompetitive purposes of the antitrust laws and to restore the
competition the United States alleges was harmed by the challenged
conduct. Defendant agrees that it may be held in contempt of, and that
the Court may enforce, any provision of this Final Judgment that, as
interpreted by the Court in light of these procompetitive principles
and applying ordinary tools of interpretation, is stated specifically
and in reasonable detail, whether or not it is clear and unambiguous on
its face. In any such interpretation, the terms of this Final Judgment
should not be construed against either party as the drafter.
C. In an enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may apply
to the Court for an extension of this Final Judgment, together with
other relief that may be appropriate. In connection with a successful
effort by the United States to enforce this Final Judgment against
Defendant, whether litigated or resolved before litigation, Defendant
agrees to reimburse the United States for the fees and expenses of its
attorneys, as well as all other costs including experts' fees, incurred
in connection with that effort to enforce this Final Judgment,
including in the investigation of the potential violation.
D. For a period of four years following the expiration of this
Final Judgment, if the United States has evidence that Defendant
violated this Final Judgment before it expired, the United States may
file an action against Defendant in this Court requesting that the
Court order: (1) Defendant to comply with the terms of this Final
Judgment for an additional term of at least four years following the
filing of the enforcement action; (2) all appropriate contempt
remedies; (3) additional relief needed to ensure Defendant complies
with the terms of this Final Judgment; and (4) fees or expenses as
called for by this Section.
XIII. Expiration of Final Judgment
Unless the Court grants an extension, this Final Judgment will
expire 5 years from the date of its entry except that after two years
from the date of its entry, this Final Judgment may be terminated upon
notice by the United States to the Court and Defendant that
continuation of this Final Judgment is no longer necessary or in the
public interest.
XIV. Reservation of Rights
The Final Judgment relates only to the resolution of the Settled
Antitrust Claims. The United States reserves all rights for any other
claims against Defendant that may be brought in the future. The entry
of the Final Judgment does not limit the ability of any non-settling
attorney general of any State to bring or maintain any action under
federal or state law against Defendant.
XV. Public Interest Determination
Entry of this Final Judgment is in the public interest. The parties
have complied with the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16, including by making available to the
public copies of this
[[Page 43128]]
Final Judgment and the Competitive Impact Statement, public comments
thereon, and any response to comments by the United States. Based upon
the record before the Court, which includes the Competitive Impact
Statement and, if applicable, any comments and response to comments
filed with the Court, entry of this Final Judgment is in the public
interest.
Date:------------------------------------------------------------------
[Court approval subject to procedures of Antitrust Procedures
and Penalties Act, 15 U.S.C. 16]
-----------------------------------------------------------------------
United States District Judge
United States District Court for the Middle District of North Carolina
UNITED STATES OF AMERICA, et al., Plaintiffs, v. GREYSTAR
MANAGEMENT SERVICES, LLC, Defendant.
No. 1:24-cv-00710-WLO-JLW
Competitive Impact Statement
In accordance with the Antitrust Procedures and Penalties Act, 15
U.S.C. 16(b)-(h) (the ``APPA'' or ``Tunney Act''), the United States of
America files this Competitive Impact Statement related to the proposed
Final Judgment against Defendant Greystar Management Services, LLC,
which has been filed in this civil antitrust proceeding (ECF No. 152-
1).
I. Nature and Purpose of the Proceeding
On August 23, 2024, the United States, along with co-plaintiff
States, filed a civil antitrust Complaint (the ``Complaint'') against
RealPage, Inc. (``RealPage''). On January 7, 2025, the United States
and its co-plaintiff States amended the Complaint to add Greystar
Management Services, LLC (``Greystar'') and five other property
management companies (``property managers'') as Defendants. Greystar
licenses a revenue management product called AI Revenue Management
(``AIRM'') from RealPage. RealPage also licenses AIRM and its other
revenue management products to Greystar's competitors, including the
other property managers or property owners (collectively,
``landlords'') named in the Complaint. Greystar and other landlords use
RealPage's revenue management products to determine how to price floor
plans and units for the conventional multifamily rental housing that
they each manage and lease, in competition with each other in numerous
local rental housing markets around the country.
The Complaint alleges that Greystar violated Section 1 of the
Sherman Act, 15 U.S.C. 1, by unlawfully sharing its confidential and
competitively sensitive information with RealPage for use in its and
competing landlords' pricing. Under their licensing agreements with
RealPage, Greystar and competing landlords have provided RealPage with
daily, competitively sensitive, nonpublic information relating to their
leasing businesses, including details like how many leases have been
renewed, for what terms, and at what price. The transactional data that
Greystar and other landlords have agreed to provide to RealPage
includes current, forward-looking, granular, and highly competitively
sensitive information. As reflected in the design, development, and
operation of its revenue management products, RealPage has used
Greystar's competitively sensitive, nonpublic information to influence
rental prices and other recommendations across conventional multifamily
rental housing managed by competing landlords. Through RealPage's
revenue management products, Greystar's rental prices and related
recommendations for conventional multifamily housing rentals were
likewise influenced by its competitors' competitively sensitive,
nonpublic information. In each relevant market, RealPage and
participating landlords, including Greystar, collectively have
sufficient market power, as indicated by market and data penetration,
to harm renters and the competitive process through their unlawful
sharing of confidential and competitively sensitive information with
each other.
The Complaint also alleges that Greystar and other landlords, by
adopting and using RealPage's revenue management products, have agreed
with RealPage to align their pricing, thereby violating Section 1 of
the Sherman Act, 15 U.S.C. 1. RealPage has entered into agreements with
Greystar and its competing landlords relating to how to price floor
plans and rental units by licensing its revenue management products,
AIRM and YieldStar, to landlords, and by training and running its
revenue management products using competitively sensitive, nonpublic
transactional data shared by landlords. Adoption and use of RealPage's
revenue management products by Greystar and other landlords has the
likely effect of aligning their pricing processes, strategies, and
pricing responses, and Greystar and other landlord users understand
this likely effect.
The Complaint also alleges monopolization and attempted
monopolization claims against RealPage, but not against Greystar or any
of its competing landlords. Through its licensing agreements, RealPage
has amassed a massive reservoir of competitively sensitive data from
competing landlords. RealPage has ensured that other providers of
revenue management products cannot compete on the merits unless they
enter into similar agreements with landlords, thereby obstructing them
from competing with products that do not harm the competitive process.
On August 8, 2025, the United States filed a proposed Final
Judgment and a Stipulation and Order (``Stipulation and Order''), which
are designed to remedy the loss of competition alleged in the Complaint
due to Greystar's conduct.
The proposed Final Judgment, which is explained more fully below,
imposes several requirements and restrictions on Greystar that address
the United States' concerns regarding Greystar's anticompetitive
conduct alleged in the Complaint. Specifically:
i. Greystar cannot license or use any revenue management product
that uses third-party nonpublic data to recommend or set prices;
ii. Greystar cannot license or use any revenue management product
that pools information across Greystar properties with different
owners;
iii. Greystar cannot disclose, solicit, or use competitively
sensitive information from competitors that can be used to set rental
prices or generate pricing;
iv. Greystar must cooperate in this civil antitrust proceeding
(United States et al. v. RealPage et al.) with respect to the
monopolization and attempted monopolization claims against RealPage;
v. Greystar must adopt a written antitrust compliance policy and
designate a chief antitrust compliance officer who will train Greystar
employees on the policy;
vi. Greystar must allow the United States to inspect its documents
and to interview its employees to ensure compliance with the Final
Judgment;
vii. If Greystar uses a revenue management product, Greystar will
be subject to a monitor unless Greystar obtains a certification that
meets certain requirements, including affirming, among other things,
that the product complies with all required limitations regarding use
of competitors' competitively sensitive data in its runtime operation
or model training; and
viii. Greystar will also be subject to a monitor if the Court finds
that Greystar has violated the terms of the proposed Final Judgment.
Under the terms of the Stipulation and Order, Greystar must abide
by and comply with the provisions of the proposed Final Judgment until
it is entered by the Court or until the time
[[Page 43129]]
for all appeals of any Court ruling declining entry of the proposed
Final Judgment has expired.
The United States and Greystar have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
APPA. Entry of the proposed Final Judgment will terminate this action
with respect to Greystar, except that the Court will retain
jurisdiction to construe, modify, or enforce the provisions of the
proposed Final Judgment and to punish violations thereof by Greystar.
II. Description of Events Giving Rise to the Alleged Sherman Act
Violations
Greystar has been a user of commercial revenue management and
property management products that RealPage licenses to landlords, and
it has used RealPage's revenue management software to help set rental
prices for the properties it manages and/or owns. RealPage currently
licenses three revenue management products, including AIRM, to
landlords. AIRM, which Greystar uses, leverages confidential,
competitively sensitive data collected from competing landlords as a
critical input to generate price recommendations for competing
landlords. This data includes rental applications, executed new leases,
renewal offers and acceptances, and occupancy estimates and
projections. The data is pulled from property management software, such
as RealPage's OneSite product, that Greystar and other landlords use to
collect and track rental payments, manage leases, property maintenance,
accounting, and other property management functions.
When deciding where to live, renters often visit numerous
properties that are owned and managed by competing landlords so that
they can compare rental offerings and select their best housing option
considering price and other terms. When competing landlords do not have
access to each other's nonpublic data, or recommendations informed by
competitors' nonpublic data, they are more likely to act independently
and compete more vigorously on price and better leasing terms to secure
new leases and renewals from renters. RealPage, however, provides
landlords who use its revenue management products with pricing
recommendations and pricing based on competitors' competitively
sensitive data. Widespread adoption and use of RealPage's revenue
management products leads to pricing decisions by competing landlords
such as Greystar that are based on recommendations coming from a common
pricing model and powered by competitively sensitive, nonpublic data,
harming the ability of renters to obtain a competitive price for their
housing. The use of competitors' competitively sensitive data in this
manner thus harms renters as well as the competitive process itself.
Greystar, headquartered in Charleston, South Carolina, is one of
the largest apartment managers in the United States. As of 2025,
Greystar managed approximately 950,000 in the United States. As an
apartment manager, Greystar makes strategic and competitive decisions
for the apartments it manages, including determination of new lease and
renewal terms, such as rental price. Greystar licenses AIRM from
RealPage. Per the licensing agreement, Greystar relies on AIRM to
recommend rental prices for its units, which is informed by
competitively sensitive data provided by Greystar's competitors.
Greystar also provides its competitively sensitive data to RealPage, to
be used to inform the rental prices that RealPage's software recommends
to Greystar's competitors. Further, Greystar has agreed with RealPage
to use AIRM pricing software as RealPage designed it. It reviews AIRM
floor plan price recommendations daily and uses the software to set
scheduled floor plan rents and even unit-level prices.
In summary, the Complaint alleges that Greystar unlawfully shared
its competitively sensitive information for use in pricing by competing
landlords that also license RealPage's software, and that Greystar
agreed to align its pricing with that of its competitors by using
RealPage's software in the way the software was designed and with the
data it uses. Greystar uses RealPage's revenue management products to
inform its setting of rental prices and discounts--such as concessions
of a free month of rent--and to make other competitive and strategic
decisions relating to rental prices and terms.
III. Explanation of the Proposed Final Judgment
The relief required by the proposed Final Judgment will remedy the
loss of competition in the conventional multifamily rental housing
market \13\ alleged in the Complaint by precluding Greystar from
sharing competitively sensitive, nonpublic information, directly or
indirectly, with competing landlords and from forming agreements,
directly or indirectly, to align prices with its competitors. The terms
described below are designed to ensure that Greystar ends its
anticompetitive conduct and to prevent Greystar from engaging in the
same or similar conduct in the future.
---------------------------------------------------------------------------
\13\ As stated in the Complaint, the conventional multifamily
rental housing market includes apartments available to the general
public in properties that have five or more living units. It does
not include student housing, affordable housing, age-restricted or
senior housing, or military housing. (Am. Compl. ] 183).
---------------------------------------------------------------------------
A. Greystar's Use of Revenue Management Products
The proposed Final Judgment imposes requirements on Greystar
related to the type of data in any revenue management product Greystar
licenses or uses. Paragraph IV.A.1 of the proposed Final Judgment
requires Greystar to select a software that does not (1) use
competitively sensitive data from different property managers, unless
from the same property owner of the subject property, to set rental
prices or generate rental pricing recommendations, (2) use data from
different property owners to set rental prices or generate rental
pricing recommendations, (3) disclose data from a Greystar property to
a rival landlord or property owner, (4) pool or combine data from
different property owners, or (5) contain or use a pricing algorithm
that has been trained using nonpublic data from different property
owners.
The restrictions regarding the use of competitively sensitive data
from other landlords and different Greystar property owners require
Greystar and each client Greystar serves (whether it be a property
manager or property owner) to individually use their own data to make
pricing decisions for conventional multifamily rental housing units.
The restriction is designed to restore the competitive pressure among
landlords.
The prohibition against pooling data from different owners
prohibits property owners who compete in the conventional multifamily
rental housing industry from using their relationship with Greystar to
gain access to each other's data.
Additionally, the proposed Final Judgment prohibits Greystar from
licensing or using a revenue management product in which the software's
model has been trained using data from different owners. A model is a
set of rules or instructions that software relies on to calculate a
defined output which, in this case, is a recommended rental price for a
floorplan or unit. Models are trained using data to define and refine
the rules or instructions by which it operates. The restriction on
pooling competitors' data thus also prohibits Greystar from training
its software models using pricing and occupancy data from
[[Page 43130]]
competing property owners, therefore reducing concerns about
competitors benefiting from using each other's competitively sensitive
data to plan their pricing.
If Greystar decides to use a commercially available revenue
management product, Paragraph V.A.2 also prohibits Greystar from
selecting and using a revenue management product that sets rental
floors or limits rental pricing recommendation decreases based on
competing properties' rental prices.
The proposed Final Judgment includes an additional restriction on
Greystar's ability to make agreements with non-clients regarding
revenue management products. Specifically, Paragraph IV.A.3 prohibits
Greystar from agreeing with a non-client property owner or a competing
landlord to use a particular revenue management product. This provision
reduces the risk of competitors agreeing with each other to use the
same revenue management product across their clients.
In the event that the United States and RealPage, Inc. enter into a
consent decree in this matter, and such consent decree permits RealPage
to offer a Revenue Management Product, Paragraph IV.D allows Greystar
to license or use such product.
B. Other Prohibited Conduct
In addition to restrictions and conditions on Greystar's use of
revenue management products, the proposed Final Judgment also limits
Greystar's ability to communicate with competitors regarding certain
competitively sensitive information for the purpose of setting prices.
Paragraph V.A prohibits Greystar from disclosing, soliciting, or using
any competitively sensitive data from competitors as part of setting
rental prices or generating rental price recommendations except for the
property owner of a particular Greystar property. Paragraph V.A
clarifies that the restrictions include any data obtained through any
form of communication, including call arounds or market surveys,
meetings, calls, text messages, emails, or shared documents.
In addition, the proposed Final Judgment prohibits Greystar from
attending or participating in RealPage meetings, which include steering
committees, RealPage subcommittees, RealPage user groups, and RealPage
Idea Exchange. Paragraph V.B. provides that if Greystar attends a
RealPage meeting, it must notify the United States within 30 days and
provide a description of the content and any documents shown during the
meeting. Additionally, Greystar must produce to the United States any
chats or documents associated with the meeting.
Paragraph V.C prevents Greystar from using any competitively
sensitive data belonging to other landlords, whether Greystar derived
that non-Greystar data from a revenue management product or obtained it
from direct communications with other landlords. Greystar must also
identify to the United States the existence and location of any such
data. This does not apply to any data for Greystar properties
maintained in OneSite.
C. Cooperation
Under the terms of the proposed Final Judgment, and subject to
reaching settlement with certain States, Greystar must cooperate with
the United States relating to the United States' monopolization and
attempted monopolization claims against RealPage, as described above
and included in the Complaint. This required cooperation includes
voluntary interviews with at least 10 employees for up to 40 hours. In
addition, Greystar must provide cooperation to the United States
related to all claims alleged in United States et al. v. RealPage et
al., including by making witnesses available before trial, providing
testimony, proffering evidence, and producing documents and other
information.
D. Compliance Terms
Pursuant to Paragraph IX.A, Greystar must provide the United States
with access to Greystar's books, records, data, and documents,
including communications with other property managers, to enable the
United States to assess Greystar's compliance with the terms of the
Final Judgment. Greystar must also permit the United States to
interview Greystar's officers, employees, or agents relating to any
matters contained in this Final Judgment. Paragraph IX.C provides that
if Greystar elects to use a proprietary revenue management product,
Greystar must also provide the United States with documents describing
how Greystar's proprietary software is trained and how it determines
prices for properties it manages, as well as changes to these
processes. Greystar must also allow the United States to inspect
Greystar's software code and pseudocode of that software for
independent verification.
Additionally, Paragraph VI.B requires Greystar's chief antitrust
officer to implement and enforce Greystar's antitrust compliance policy
and annual training. Paragraph VI.C requires Greystar to submit an
annual certification from its General Counsel that Greystar has
established and maintained this annual antitrust compliance policy and
training, that vendors of the revenue management products Greystar
licenses or uses have provided certifications that the product
satisfies the requirements in the proposed Final Judgment, and that
Greystar has complied with the requirements in Paragraph VI.A to not
disclose, solicit, or share competitively sensitive data. Finally,
Greystar must provide a report to the United States that identifies
each Greystar property that uses a commercially available revenue
management product. The report must further identify who is responsible
for setting prices for each Greystar property and whether Greystar
provides revenue management services for that property.
E. Appointment of a Monitor
The proposal Final Judgment requires that Greystar be subject to an
appointed compliance monitor in certain circumstances.
First, Paragraph VIII.B requires that a monitor be appointed if a
Court determines that Greystar has violated the proposed Final
Judgment.
In addition, Paragraph IV.C requires Greystar to notify the United
States if it chooses to license or use any commercially available
revenue management product at any of its properties. In that
circumstance, Paragraph VIII.B requires that Greystar be subject to a
monitor unless Greystar obtains a certification for such product, as
required by Paragraph IV.E: (a) for a non-RealPage revenue management
product, the product's vendor must certify that the product does not
use competitors' competitively sensitive data to determine rental
prices and satisfies other software requirements; (b) for a RealPage
revenue management product, a monitor appointed pursuant to other terms
of the proposed Final Judgment must certify that the product complies
with the proposed Final Judgment's requirements.
In the event a monitor is appointed, the monitor will assess
Greystar's compliance with the Final Judgment, in particular, its use
of a revenue management product and communications with other
landlords. Paragraph VIII.F provides the monitor with authority to
investigate Greystar's compliance with the Final Judgment, including by
selecting up to 15 Greystar employees to interview and giving the
monitor access to review their files. Further, per Paragraph VIII.D,
the monitor will have the authority to take steps necessary to ensure
compliance with the Final Judgment. These steps may include
interviewing Greystar
[[Page 43131]]
employees and collecting Greystar documents. The monitor will also
provide an annual report to the United States setting forth Greystar's
efforts to comply with its obligations under the Final Judgment.
If appointed, the monitor will serve at Greystar's expense, on such
terms and conditions as the United States approves in its sole
discretion. Greystar will be required to assist the compliance monitor
in fulfilling his or her obligations. The monitor will serve for the
remainder of the term of the Final Judgment or until Greystar obtains a
certification, as described above.
F. Other Provisions
The proposed Final Judgment also contains provisions designed to
promote compliance with and make enforcement of the Final Judgment more
effective. Paragraph XII.A provides that the United States retains and
reserves all rights to enforce the Final Judgment, including the right
to seek an order of contempt from the Court. Under the terms of this
paragraph, Greystar has agreed that in any civil contempt action, any
motion to show cause, or any similar action brought by the United
States regarding an alleged violation of the Final Judgment, the United
States may establish the violation and the appropriateness of any
remedy by a preponderance of the evidence and that Greystar has waived
any argument that a different standard of proof should apply. This
provision aligns the standard for compliance with the Final Judgment
with the standard of proof that applies to the underlying offense
addressed by the Final Judgment.
Paragraph XII.B provides additional clarification regarding the
interpretation of the provisions of the proposed Final Judgment.
Pursuant to Paragraph XII.B of the proposed Final Judgment, Greystar
agrees that it will abide by the proposed Final Judgment and that it
may be held in contempt of the Court for failing to comply with any
provision of the proposed Final Judgment that is stated specifically
and in reasonable detail, as interpreted in light of its procompetitive
purpose.
Paragraph XII.C provides that if the Court finds in an enforcement
proceeding that Greystar has violated the Final Judgment, the United
States may apply to the Court for an extension of the Final Judgment,
together with such other relief as may be appropriate. In addition, to
compensate American taxpayers for any costs associated with
investigating and enforcing violations of the Final Judgment, Paragraph
XII.C provides that in any successful effort by the United States to
enforce the Final Judgment against Greystar, whether litigated or
resolved before litigation, Greystar must reimburse the United States
for attorneys' fees, experts' fees, and other costs incurred in
connection with that effort to enforce this Final Judgment, including
the investigation of the potential violation.
Paragraph XII.D of the proposed Final Judgment states that the
United States may file an action against Greystar for violating the
Final Judgment for up to four years after the Final Judgment has
expired or been terminated. This provision is meant to address
circumstances such as when evidence that a violation of the Final
Judgment occurred during the term of the Final Judgment is not
discovered until after the Final Judgment has expired or been
terminated, or when there is not sufficient time for the United States
to complete an investigation of an alleged violation until after the
Final Judgment has expired or been terminated. This provision therefore
makes clear that, for four years after the Final Judgment has expired
or been terminated, the United States may still challenge a violation
that occurred during the term of the Final Judgment.
Finally, Section XIII of the proposed Final Judgment provides that
the Final Judgment will expire five years from the date of its entry,
except that after two years from that date, the Final Judgment may be
terminated upon notice by the United States to the Court and to
Greystar that continuation of the Final Judgment is no longer necessary
or in the public interest.
IV. Remedies Available to Potential Private Plaintiffs
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment neither impairs
nor assists the bringing of any private antitrust damage action. Under
the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the
proposed Final Judgment has no prima facie effect in any subsequent
private lawsuit that may be brought against Greystar.
IV. Procedures Available for Modification of the Proposed Final
Judgment
The United States and Greystar have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least 60 days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within 60
days of the date of publication of this Competitive Impact Statement in
the Federal Register, or within 60 days of the first date of
publication in a newspaper of the summary of this Competitive Impact
Statement, whichever is later. All comments received during this period
will be considered by the U.S. Department of Justice, which remains
free to withdraw its consent to the proposed Final Judgment at any time
before the Court's entry of the Final Judgment. The comments and the
responses of the United States will be filed with the Court. In
addition, the comments and the United States' responses will be
published in the Federal Register unless the Court agrees that the
United States instead may publish them on the U.S. Department of
Justice, Antitrust Division's internet website.
Written comments should be submitted in English to: Danielle Hauck,
Acting Chief, Technology and Digital Platforms Section, Antitrust
Division, United States Department of Justice, 450 Fifth St. NW, Suite
7100, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
As an alternative to the proposed Final Judgment, the United States
considered a full trial on the merits against Greystar. The United
States could have continued its litigation against Greystar and brought
the case to trial, seeking relief including an injunction against
Greystar's sharing of its competitively sensitive, nonpublic data with
RealPage and other landlords, an injunction against Greystar using
AIRM, YieldStar, or similar products that use competing properties'
nonpublic data to recommend prices, and an injunction preventing any
communication with competitors that leads to alignment of prices. Under
the circumstances present here, however,
[[Page 43132]]
the United States concludes that entry of the proposed Final Judgment
is in the public interest insofar as it avoids the time, expense, and
uncertainty of a full trial on the merits.
VII. Standard of Review Under the APPA for the Proposed Final Judgment
Under the Clayton Act and APPA, proposed Final Judgments, or
``consent decrees,'' in antitrust cases brought by the United States
are subject to a 60-day comment period, after which the Court shall
determine whether entry of the proposed Final Judgment ``is in the
public interest.'' 15 U.S.C. 16(e)(1). In making that determination,
the Court, in accordance with the statute as amended in 2004, is
required to consider:
(A) the competitive impact of such judgment, including termination
of alleged violations, provisions for enforcement and modification,
duration of relief sought, anticipated effects of alternative remedies
actually considered, whether its terms are ambiguous, and any other
competitive considerations bearing upon the adequacy of such judgment
that the court deems necessary to a determination of whether the
consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and individuals
alleging specific injury from the violations set forth in the complaint
including consideration of the public benefit, if any, to be derived
from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory
factors, the Court's inquiry is necessarily a limited one as the
government is entitled to ``broad discretion to settle with the
defendant within the reaches of the public interest.'' United States v.
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); United States v.
U.S. Airways Grp., Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014)
(explaining that the ``court's inquiry is limited'' in Tunney Act
settlements); United States v. InBev N.V./S.A., No. 08-1965 (JR), 2009
U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a
court's review of a proposed Final Judgment is limited and only
inquires ``into whether the government's determination that the
proposed remedies will cure the antitrust violations alleged in the
complaint was reasonable, and whether the mechanisms to enforce the
final judgment are clear and manageable''); United States v. Charleston
Area Med. Ctr., Inc., No. CV 2:16-3664, 2016 WL 6156172, at *2 (S.D.W.
Va. Oct. 21, 2016) (explaining that in evaluating whether the proposed
final judgment is in the public interest, the inquiry is ``a narrow
one.''); United States v. Mountain Health Care, 1:02-CV-288-T, 2003 WL
22359598, at *7 (W.D.N.C. 2003) (``[W]ith respect to the adequacy of
the relief secured by the decree, a court may not `engage in an
unrestricted evaluation of what relief would best serve the public.''')
citing United Sates v. BSN, 858 F.2d 456, 462-63 (9th Cir. 1988)).
As the U.S. Court of Appeals for the D.C. Circuit has held, under
the APPA a court considers, among other things, the relationship
between the remedy secured and the specific allegations in the
government's Complaint, whether the proposed Final Judgment is
sufficiently clear, whether its enforcement mechanisms are sufficient,
and whether it may positively harm third parties. See Microsoft, 56
F.3d at 1458-62; United States v. Math Works, No. 02-888-A, 2003 WL
1922140, *17 (E.D. Va. 2003). With respect to the adequacy of the
relief secured by the proposed Final Judgment, a court may not ``make
de novo determination of facts and issues.'' United States v. W. Elec.
Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks omitted);
see also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc.,
152 F. Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107
F. Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. Dist. LEXIS 84787,
at *3. Instead, ``[t]he balancing of competing social and political
interests affected by a proposed antitrust decree must be left, in the
first instance, to the discretion of the Attorney General.'' W. Elec.
Co., 993 F.2d at 1577 (quotation marks omitted). ``The court should
also bear in mind the flexibility of the public interest inquiry: the
court's function is not to determine whether the resulting array of
rights and liabilities is the one that will best serve society, but
only to confirm that the resulting settlement is within the reaches of
the public interest.'' Microsoft, 56 F.3d at 1460 (quotation marks
omitted); see also United States v. Deutsche Telekom AG, No. 19-2232
(TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14, 2020); Math Works, 2003
WL 1922140 at *18; Mountain Health Care, 2003 WL 22359598, at *7. More
demanding requirements would ``have enormous practical consequences for
the government's ability to negotiate future settlements,'' contrary to
congressional intent. Microsoft, 56 F.3d at 1456. ``The Tunney Act was
not intended to create a disincentive to the use of the consent
decree.'' Id.
The United States' predictions about the efficacy of the remedy are
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at
1461 (recognizing courts should give ``due respect to the Justice
Department's . . . view of the nature of its case''); United States v.
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In
evaluating objections to settlement agreements under the Tunney Act, a
court must be mindful that [t]he government need not prove that the
settlements will perfectly remedy the alleged antitrust harms[;] it
need only provide a factual basis for concluding that the settlements
are reasonably adequate remedies for the alleged harms.'' (internal
citations omitted)); United States v. Republic Servs., Inc., 723 F.
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to
which the government's proposed remedy is accorded''); United States v.
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A
district court must accord due respect to the government's prediction
as to the effect of proposed remedies, its perception of the market
structure, and its view of the nature of the case.''). The ultimate
question is whether ``the remedies [obtained by the Final Judgment are]
so inconsonant with the allegations charged as to fall outside of the
`reaches of the public interest.' '' Microsoft, 56 F.3d at 1461
(quoting W. Elec. Co., 900 F.2d at 309).
Moreover, the Court's role under the APPA is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its Complaint, and does not authorize the Court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways,
38 F. Supp. 3d at 75 (noting that the court must simply determine
whether there is a factual foundation for the government's decisions
such that its conclusions regarding the proposed settlements are
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``[T]he
`public interest' is not to be measured by comparing the violations
alleged in the complaint against those the court believes could have,
or even should have, been alleged''); Math Works, 2003 WL 1922140 at
*18; Mountain Health Care 2003 WL 22359598, at *8. Because the
``court's authority to review the decree depends entirely on the
government's exercising its prosecutorial discretion by bringing a case
in the first place,'' it follows that ``the court is only authorized to
review the decree itself,'' and not to ``effectively redraft the
complaint'' to inquire into other matters that the United States did
[[Page 43133]]
not pursue. Microsoft, 56 F.3d at 1459-60.
In its 2004 amendments to the APPA, Congress made clear its intent
to preserve the practical benefits of using judgments proposed by the
United States in antitrust enforcement, Public Law 108-237 Sec. 221,
and added the unambiguous instruction that ``[n]othing in this section
shall be construed to require the court to conduct an evidentiary
hearing or to require the court to permit anyone to intervene.'' 15
U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76
(indicating that a court is not required to hold an evidentiary hearing
or to permit intervenors as part of its review under the Tunney Act).
This language explicitly wrote into the statute what Congress intended
when it first enacted the Tunney Act in 1974. As Senator Tunney
explained: ``[t]he court is nowhere compelled to go to trial or to
engage in extended proceedings which might have the effect of vitiating
the benefits of prompt and less costly settlement through the consent
decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of Sen.
Tunney). ``A court can make its public interest determination based on
the competitive impact statement and response to public comments
alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citing Enova Corp., 107 F.
Supp. 2d at 17).
VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: August 25, 2025
Respectfully submitted,
FOR PLAINTIFF
UNITED STATES OF AMERICA:
-----------------------------------------------------------------------
Henry C. Su
David A. Geiger
Danielle G. Hauck
John J. Hogan
Kris A. Perez Hicks
Attorneys
United States Department of Justice
Antitrust Division
Technology and Digital Platforms Section
450 Fifth St. NW, Suite 7100
Washington DC 20530
Telephone: (202) 307-6200
Email: [email protected]
[FR Doc. 2025-17086 Filed 9-4-25; 8:45 am]
BILLING CODE 4410-11-P