What a Trump victory would mean for antitrust enforcement

When it comes to what a possible Kamala Harris or Donald Trump victory in the presidential election means for the future of antitrust enforcement in the real estate industry, attorney and industry analyst Rob Hahn may have said it best.

“No one knows anything,” Hahn wrote in the Nov. 1 edition of his Notorious ROB email newsletter. “Neither Trump nor Harris have made antitrust a major issue in their campaigns. None of the people running have any real background in antitrust, and only Trump has any kind of track record.”

Although the war between the Ministry of Justice (DOJ) and the National Association of Real Estate Agents (NAR) has been going on for decades, with the most recent round of battles beginning under the Trump administration in 2018. That’s when Congressmen Tom Marino (R-Pa.) and David Cicilline (D-I) sent a letter to the DOJ and the Federal Trade Commission (FTC) asks them to “investigate competition-related issues in the real estate brokerage industry.”

The investigation eventually led to a lawsuit, which was settled in 2020. But NAR did not finalize the settlement until after Joe Biden took office in 2021. And under the Biden administration, the DOJ decided to withdraw from the settlement, prompting the latest round of lawsuits and appeals.

In addition, an article was published by the New York Law Journal found that the antitrust divisions of the FTC and DOJ have roughly doubled the average number of complaints filed each year under Biden to compel trades, compared to filings with the agency under the Trump administration.

Trump’s track record shows that he has generally been more pro-business than other administrations. This has led to speculation that under a second Trump term, many of the real estate industry’s antitrust problems would disappear, while a Harris presidency would result in a continuation of the status quo. But industry analysts and lawyers aren’t so sure.

While the Consumer Financial Protection Bureau (CFPB) does not deal with antitrust issues, former CFPB Deputy Enforcement Director Jeff Ehrlich believes a second Trump administration will generally be more aggressive in enforcement than many expect.

“In 2020, the last full year of the previous Trump administration, the Bureau took 48 enforcement actions; so far this year there have only been 21,” Ehrlich wrote in an email.

He further noted that during the Trump administration, the agency “brought some pretty aggressive cases, including in the area of ​​housing.” It filed suit against a non-bank lender City stone Financial for alleged violations of the Equal Credit Opportunity Act (ECOA) through discrimination against potential borrowers. It was also arranged a mortgage service case against Mr. Cooper for $73 million in damages and a $1.5 million fine.

“If history is any guide, a second Trump administration may not be as friendly to the industry as many expect,” Erlich wrote.

For Hahn, it was Trump’s choice of Senator JD Vance as his running mate that has made things a little murkier.

Vance has expressed his support for FTC Chair Lina Khan, stating at a policy conference in February that he “considers Lina Kahn to be one of the few people in the Biden administration who I think is doing a pretty good job, and that sort of thing makes me , apart from most of my Republican colleagues.”

Vance added that one of the things he appreciates most about Khan’s approach is that “she recognized that there needed to be some sort of broader understanding of how we think about competition in the marketplace.”

And Hahn isn’t the only one who believes Vance’s selection has exceeded expectations. The New York Law Journal wrote that “Vance has seemingly positioned himself to play a major role in antitrust enforcement and pick up where the previous Trump administration left off.”

“At the very least, a second Trump presidency would likely continue the pro-enforcement stance of his first four years. “If Trump entrusts Vance with significant control over competition policy, their administration could look surprisingly similar to the current one, potentially including appointing someone with a similar populist agenda to Khan at the helm of the FTC,” the article said.

Marx Sterbcow, the managing attorney of Sterbcow Law Groupalso does not address the narrative that a Trump victory would mean a “return to normal” for the real estate sector.

“In the past, when the Trump administration reached a settlement with NAR, things had cooled off somewhat,” Sterbcow said. “You didn’t have things like active antitrust lawsuits or jury verdicts in Missouri, so there was a lot more normalcy in the industry and everything was very stable and static for the most part.

“That has obviously changed dramatically. The industry is fakakta right now because you basically have a hodgepodge of confusion for consumers in the United States, and it just facilitates many more antitrust issues for companies and consumers.”

While Sterbcow recognizes Trump’s pro-business record, he does not believe a second Trump administration will stand aside if consumers are blatantly harmed or taken advantage of.

“It’s not like consumer protection is going away,” Sterbcow said. “We saw in the previous Trump administration that they pursued things that harmed consumers. I think in the case of the commission rules they will let it happen and let market forces take control, which could create a new set of problems.”

Sterbcow expects the sector to undergo even more significant changes over the next 24 months. But he also believes that if these changes make things worse for consumers, the DOJ’s Antitrust Division will take further action.

Hahn shares a similar view, supported by what he believes is Trump’s focus on lowering the cost of living, which he believes will translate into a focus on housing. Hahn said if the Trump administration were to get involved in housing, antitrust pressure on the industry could continue if issues like real estate agent commissions are perceived as too high or a potential roadblock to homeownership.

Just as industry experts believe that a second Trump administration will not be entirely lax on enforcement and antitrust regulations, they are also skeptical that a Harris presidency would mean a continuation of the path set by the Biden administration. Part of this skepticism is fueled by the fact that the vice president’s position on antitrust is unclear.

Harris previously announced her intention to implement a federal ban on price gouging if elected. She has plans to take on Big Pharma and major corporations, which some say are indications she may continue the Biden administration’s antitrust agenda.

Some have noted that a Harris win could wipe the slate clean when it comes to antitrust, but there doesn’t seem to be any evidence to suggest she will completely change course from what the Biden administration has been pursuing.

Sterbcow, for example, sees not only a continuation, but also an intensification of antitrust enforcement.

“I think a lot more is possible,” Sterbcow said. “I think you’re going to see a lot more fair lending and fair enforcement of housing, especially around the price of real estate commissions, and that’s something no one in the industry wants because we have no data on how things will play out with the current situation. policy changes implemented.”