DOJ Considering Statement in RealPage Rental Software MDL
On October 12, 2023, the Department of Justice (DOJ) filed a Notice of Potential Participation indicating that it may file a Statement of Interest in a multidistrict litigation (MDL) against RealPage, a provider of property management software, and landlords across the country (Dkt. 599). In a Second Amended Consolidated Class Action Complaint, the class of multifamily tenants allege that the defendants used RealPage’s revenue management software (RMS) to fix rents in the housing market (Dkt. 530). The RMS purportedly relies on “non-public, competitively sensitive data” of its users—“including their lease transactions, rent prices, and occupancy and inventory levels”—to train an algorithm that sets rents to optimize for revenue.
According to the Second Amended Complaint, use of the RMS is contingent on property management companies submitting such information to RealPage's data pool and accepting the algorithm-determined pricing scale. Such policies, according to plaintiffs, improve the algorithm and strengthen adherence to the coordinated pricing scheme. To this end, RealPage further “established a rigorous monitoring and compliance system” to ensure adherence. Any deviations from the recommended price allegedly require RealPage approval, and prices are constantly monitored by RealPage “Pricing Advisors.”
The DOJ’s Notice states that it is particularly interested in addressing the proper application of Section 1 of the Sherman Act in the context of algorithmic pricing because it “has become more prevalent in the modern economy” and is therefore “of increasing significance to the application of antitrust law across the economy.”
The case is In Re: Realpage, Inc., Rental Software Antitrust Litigation (No. II), 3:23-md-03071 (M.D. Tenn.).