Jacquelyn Martin/AP Photo
Research from the Consumer Financial Protection Bureau found that roughly 20 percent of Americans held some form of medical debt.
The Biden administration’s antitrust enforcers are doing something unthinkable in the final days of their tenure in government: They’re continuing to govern. Just this week, anti-monopoly regulators across various agencies finalized sweeping rules and also took new actions to crack down on corporate malfeasance harming consumers.
It’s a stark contrast to how other branches of the government are treating the lame-duck period in preparation for the transition of power. Some Biden administration officials have even begun to resign early under pressure from Republicans, meekly making way for the incoming administration.
While it’s not common for agencies to forge ahead so close to a transition of power, that kind of timidity is purely a formality. By issuing new policies, antitrust enforcers are making an aggressive push to put the ball in the Trump administration’s court, given that these new regulatory measures will likely face industry pushback, congressional review, hostile courts, or outright agency reversals in the coming months.
The pace at which the current antitrust regulators have stacked up wins in the final minutes of the fourth quarter is dizzying.
On Wednesday, the Consumer Financial Protection Bureau finalized a landmark rule banning the inclusion of medical bills and accrued debt on individuals’ credit reports, which are used by lenders to evaluate whether a prospective borrower is trustworthy enough to receive a loan. The rule will wipe away billions of dollars in debt on existing credit reports, giving people a clean slate moving forward to get access to new lines of credit.
Earlier research from the agency found that roughly 20 percent of Americans held some form of medical debt. The inclusion of these figures in creditors’ assessments were potentially cutting off millions of Americans’ access to the financial system.
The various causes for medical debt include individuals who were uninsured or undercovered, who were then stuck with exorbitantly high bills after suffering a medical emergency. Because of how widespread the medical debt crisis is in the U.S., the CFPB found that this debt didn’t adequately indicate an individual’s ability to pay off other kinds of loans, such as an auto loan or a loan for a small business. There are also widespread and documented errors in medical debt on credit reports.
By using medical bills as a factor in credit ratings, lenders were in some cases forcing borrowers to put their medical devices, such as wheelchairs or prosthetic limbs, down as collateral for repossession. In one instance cited in public comments, an Iraq War veteran actually had his prosthetic limb repossessed by a debt collector because he was late paying back a loan. As part of its rule, the CFPB specifically prohibits this predatory repossession practice as well.
Antitrust enforcers are making an aggressive push to put the ball in the Trump administration’s court.
First proposed in 2023, the rule was frequently cited by President Biden as one of his administration’s achievements to protect consumers. Even when Vice President Harris remained quiet about the role that anti-monopoly enforcers would play in her future administration, she loudly championed this rule specifically because of its political salience. And she issued a formal statement on Wednesday.
In a related action, the CFPB filed a lawsuit against Experian, the largest credit reporting agency, for keeping inaccurate information on consumers’ reports in violation of the Fair Credit Reporting Act. Consumers had routinely raised issues with flagrantly false information showing up on their credit reports, which potentially harmed their loan application status. The CFPB found that Experian didn’t take proper measures to investigate these errors, would uncritically accept the word of third parties transmitting this sensitive personal data, and even on several occasions reinstated the false information after temporarily taking it down.
These are the latest actions in a flurry from CFPB of late, including suing Walmart for opening up bank accounts for their delivery drivers, suing Rocket Mortgage over a kickback scheme, suing the biggest banks over neglecting fraud activity on Zelle, the payment service they operate, and finalizing rules to protect people’s credit card rewards, which included inaugurating a new comparison-shopping tool for consumers to choose the best credit card with the most features. In part, the CFPB got a late start to rulemaking because it had to fend off a right-wing constitutional challenge to its legitimacy for the first two years, a case that it ultimately won.
The same day as the medical debt rule was finalized, the Department of Justice’s Antitrust Division also updated a critical complaint. Under the current acting head of the division, Doha Mekki, the DOJ added new charges to its existing lawsuit against the real estate technology company RealPage for facilitating price-fixing in local housing markets. The DOJ complaint now targets six of the largest landlords in the country, all of which used RealPage to coordinate price hikes and share other competitively sensitive information. Those six landlords participating in the cartel operate 1.3 million units spread across 43 states.
The core of the RealPage lawsuit is that its algorithmic price-setting function allows landlords to tacitly collude to set rent prices in cities around the country. That part of the lawsuit still stands, but additionally the DOJ found through investigations that RealPage’s biggest clients were also overtly colluding with one another. For example, they communicated routinely to check that supposed competitors were accepting the higher rates RealPage recommended. They even had “user groups” where they discussed how each was using RealPage’s software tools to jack up rents.
These messages the DOJ obtained now make the lawsuit a very traditional price-fixing case where rivals share information behind closed doors. But the algorithmic aspect of the case is still critical to enforcers. “These are legal concerns and questions that will play out for the next generation,” said Jonathan Kanter, who ran the DOJ Antitrust Division until late last year. “If companies can use algorithms to circumvent the antitrust laws, that will render the antitrust laws a paper tiger.”
As part of this amended complaint, DOJ also settled with Cortland Management, an Atlanta-based real estate company. Under the agreed-upon consent decree, Cortland will give up sensitive information it obtained on competitors’ business operations and stop using RealPage’s software entirely for its price-setting functions.
The new evidence is so damning that even pro-monopoly defenders like legal scholar Herb Hovenkamp wrote that this new complaint likely makes the case a slam dunk.
Real estate isn’t the only cartel that antitrust enforcers have uncovered lately. On the same day as the DOJ’s complaint, the Federal Trade Commission took action against a ring of crude oil producers for artificially causing a shortage to jack up prices during the worst period of gas price inflation.
In 2021, Verdun Oil under ownership by XCL announced a merger with EP Energy, which entails submitting filings to agencies so they can clear the deal. But the oil companies engaged in what’s known as “gun-jumping,” where they effectively begin operating as one common corporate entity well before the transaction is actually approved, in violation of the Hart-Scott-Rodino Act. During that waiting period, XCL started preemptively making decisions for several EP production facilities in the Uinta Basin region of Utah. They decided to pause EP well drilling and then coordinated the remaining contracts with buyers in order to take advantage of oil price spikes.
Given that the merger hadn’t gone through, this activity amounts to illegal coordination between separate entities. In fact, the FTC after its investigation ended up raising objections to the anti-competitive effects of the deal, given that EP and Verdun were head-to-head rivals for supplying crude oil in the area. FTC ultimately entered into a consent decree to allow the merger, which entailed a divestiture of EP’s production sites in Utah.
To punish the illegal price-fixing that happened before the consent decree, the FTC levied a hefty civil penalty of $5.6 million against the company, the largest fine on record.
The date of the transition of power in the executive branch is January 20. There is no reason to defer to the incoming administration until that date. Republicans can try to overturn rules, whether through the agencies or using the Congressional Review Act in the House and Senate. They can go lenient on corporate offenders and maybe even try to rewrite settlement deals, though that would be unusual. But these facts do not mean that agencies must preemptively surrender before the final day on the calendar. Continuing to move forward popular proposals forces the Trump administration and Republicans to spend political capital to reverse them, at the cost of angering ordinary people.
The continued vigor of the antitrust authorities mirrors the situation during the Biden administration, where one small corner did much of the heavy lifting in governing. Doing your job shouldn’t necessarily be celebrated, but it’s preferable to quiet quitting.
