If you made a million dollars robbing a bank, and were caught by the police, would you get away with merely promising never to do it again? Forget about how you would probably have to spend time in jail: Would you be able to keep the million dollars?
Unfortunately for you, intrepid bank robber, you are not a corporation with a phalanx of lobbyists and a law enforcement adversary that doesn’t want to crimp your style. On Monday, the Department of Justice’s Antitrust Division issued a holiday news dump, settling with algorithmic price-setting company RealPage, which was accused of colluding with landlords to raise rents. None of the nearly dozen states that have sued RealPage agreed to the settlement, and for good reason: It does not ask for any disgorgement (a fancy term for giving back ill-gotten gains), nor does it include an admission of guilt.
The settlement superficially adds restrictions to RealPage’s use of nonpublic information to raise prices. But again, this is the bank robber promising not to do it again, rather than returning the loot. And RealPage has already explored new horizons in creative price-setting maneuvers. In fact, RealPage’s attorney said that the settlement “bless[es] the legality of RealPage’s prior and planned product changes.”
The disappointing result reflects something this country has struggled with for decades: a lack of courage to sanction the powerful. This is not limited to law enforcement. Last week, federal district court judge James Boasberg, who spent five years mostly delaying a monopoly case against Meta, decided that the company is not a social networking monopoly, because circumstances changed in the time between its acquisitions of competitors and his ruling. It’s hard not to see collusion between timid attorneys and timid judges to let big corporations run over anything in their path.
But as this old mindset continues to stumble the country into oligarchy, a new mindset is asserting itself. While progress never proceeds in a straight line, there’s at least some hope that the future doesn’t have to be like the past.
TO RECAP THE REALPAGE CASE, the company promised landlord clients that it would generate “revenue lift between 3 percent to 7 percent” by feeding rental data in a metro area into an algorithm that recommended price increases. Then, RealPage agents would tell landlords that they risked losing access to the platform if they didn’t comply with hiking rents.
This was a case of classic price-fixing. Don’t take my word for it: DOJ found an email from a landlord who expressed admiration for RealPage, because of the “classic price fixing.” Instead of landlords going into a room and deciding to raise prices, they would send data to the algorithm, which would do the colluding in the cloud.
In the original complaint, state attorneys general sought disgorgement and other damages for overcharging tenants for years. A separate case brought by the state of New Jersey also sought disgorgement of profits. The proposed settlement contains none of that; RealPage gets to keep whatever it earned by bidding up the price of rent in markets it controlled. (A Biden White House report last year estimated that figure at $4 billion just in 2023.) It also gets to keep the data it acquired over the years. If the data was central to the violation of law, antitrust precedent suggests that enforcers could have demanded it be destroyed.
In what remains, the settlement attempts to solve a largely solved problem. The Justice Department had already initiated several settlements with large landlords like Greystar, requiring them to refrain from using pricing algorithms that share confidential data among competitors. (Notably, the state version of the settlement with Greystar and a separate class action lawsuit included monetary penalties; the DOJ settlement did not.) In effect, the settlement commits RealPage to stop doing what DOJ already got the biggest landlords to agree to stop doing.
Specifically, RealPage must stop using or sharing nonpublic data to set rents, and cannot train its algorithm on active lease data (though it can use data that’s at least 12 months old). It cannot use incentives or otherwise force clients to accept price recommendations or limit rent decreases, and it cannot assess market effects in a geographic region smaller than the statewide level. It cannot seek this kind of nonpublic information through market surveys or discuss it in meetings with clients. And it must maintain a court-appointed compliance monitor for three years.
Not having to pay a nickel or admit wrongdoing is lenient enough. But there are several loopholes even in the restrictions. RealPage can continue using past data to train AI models, which will inform future price recommendations. Public data can be aggregated and used for this purpose. And RealPage can continue using an “auto-accept” feature for price recommendations, as long as clients can reconfigure it to opt out. We know from most of digital age history that opt-outs don’t work well.
Meanwhile, RealPage renounced the use of nonpublic data a year ago, giving clients the option to remove that information. Since then, RealPage has reformed into a kind of AI-fueled software platform. It bought Livble, a “flexible payment” processor, for a collection scheme whereby tenants can “split[] payments into up to four installments per month.” The platform could peek into a tenant’s real-time financial data and align post-lease installment loans to that cash flow. So RealPage has moved on from the scheme people don’t like, and into a different realm of unlikable things. Not punishing RealPage for breaking the law before facilitates this shape-shifting.
THE META LAWSUIT IS PERHAPS even more annoying, because law enforcers at least tried to sanction misconduct. Judge Boasberg, who admittedly doesn’t use social media, first got this case from the Federal Trade Commission in 2020, two presidencies ago. The case argued that Facebook acquired Instagram and WhatsApp to incorporate potential competition into its empire; Mark Zuckerberg literally said about the acquisitions in an email, “it is better to buy than compete.”
Between the 2020 filing and the 2025 trial, TikTok went from a diversion to a competitor for eyeballs with Meta’s products, at least in the broad category of “things you can do on the internet.” The FTC argued that Facebook dominated the market for sharing and posting with a personal social network of friends and family, a core use case of its apps. Because Facebook abandoned this as a priority—it’s down to 17 percent of total use on its products, because it’s striving to offer short videos like TikTok—Boasberg said it’s not a monopoly.
In this telling, the manic way Meta changes its algorithm to target whatever app might get in its way is why it’s not a monopoly. It’s worth asking whether Meta initiated this strategy of filling timelines with AI slop videos consciously, as part of the fight against the antitrust case. It’s also worth asking why competition for time spent on the internet generally nullifies Facebook’s clear attempt to monopolize personal social networking (which it still appears to hold a monopoly over).
But the details aren’t totally the point. The original sin was allowing the Instagram and WhatsApp mergers in the 2010s. More critically, by extending the timeline even further from that original sin, and favoring industry evidence over the government’s, Boasberg clearly wanted to get through the case without subjecting Meta to any hardship, the same way that Judge Amit Mehta, even after conceding that Google was a monopolist, wanted to get through the remedies phase with the least possible impact on its business.
As Tim Wu points out, the ruling “only fortifies the impression that the world’s wealthiest and most powerful corporations are above the law.” People like Boasberg fit their logic around this imperative. The goal is to minimize disruption. It’s the old “don’t make trouble” joke, only for decades and leading inexorably to corporate capture of government.
The good news is that this imperative is not monolithic. When Lina Khan and Jonathan Kanter took over the federal antitrust agencies, they approached the potential harms of market power differently. And though they no longer sit in those agencies, that spirit has not been snuffed out. It exists in law schools, among young lawyers, and at the state level. State attorneys general who had joined the DOJ’s RealPage case did not join the DOJ’s settlement, and can continue to litigate if they choose. I’d expect them, particularly the AGs in Arizona and the District of Columbia who filed cases separately from DOJ, to keep pursuing justice.
In a separate hearing last week, state attorneys general won the right to attempt to block an Antitrust Division settlement in the Hewlett Packard Enterprise–Juniper Networks merger challenge, something I’ve written about extensively. The Tunney Act allows a judge to hold proceedings on whether antitrust settlements are in the public interest, to prevent the very kind of pay-to-play, lobbyist-fueled corruption we saw in that case. (A Tunney Act proceeding is available in the RealPage settlement, too.) It’s not clear how much Judge Casey Pitts will probe the process leading to the merger settlement—he said he wanted to focus more on the substance—but there’s an opportunity to put Trump-era corruption, and the mindset of not making trouble for corporations, on display.
Anti-monopolists have lit a spark in this country, and it’s not going to be extinguished so easily. The impediments to more equitable markets and an end to arbitrary coercion are numerous, but so are the red-hot embers of that spark.