The U.S. Justice Department (DOJ) recently announced a proposed settlement with RealPage Inc. that would strictly prohibit the company from using competitors’ nonpublic data in its rental-pricing software. Curiously, that remedy is nearly the precise opposite of the September order from the U.S. District Court for the District of Columbia in a suit the DOJ brought charging Google with illegal monopolization of general search services. In that case, the court required Google to share portions of its search index and user-interaction data with qualified competitors.
The diverging resolutions in these two cases no doubt reflect different alleged competitive harms requiring different responses. Still, both interventions raise questions about whether courts and regulators can successfully engineer competitive outcomes through behavioral mandates, and whether market forces might have resolved these problems with less risk of unintended consequences.
The Google Remedy: Mandatory Access to Overcome Entry Barriers
The liability finding in the Google Search case established that the company maintained its search monopoly through exclusive-distribution agreements that paid billions of dollars to browser developers, smartphone manufacturers, and wireless carriers to secure default search-engine status. U.S. District Court Judge Amit Mehta found that these contracts effectively foreclosed a significant portion of the market, denying rivals the user scale necessary to train competitive search algorithms.
The economic mechanism operates through a feedback loop. Search engines improve through user-interaction data: the clicks, hover times, and query reformulations that reveal which results satisfy user intent. More users generate more data, which in turn produces better results, attracting even more users. Mehta’s opinion found that Google’s exclusive contracts prevented rivals from accumulating sufficient query volume to match Google’s quality.
The remedy requires Google to provide two categories of data to qualified competitors:
- A one-time snapshot of its search index (the database of crawled web pages); and (2)
- Ongoing access to aggregated user-interaction data showing queries and clicks.
The court rejected the DOJ’s request that Google be forced to divest Chrome or Android, reasoning that a behavioral remedy targeting the specific barrier to entry would suffice without the costs of structural breakup.
Mehta also limited the data-sharing obligation. Google does not need to share its advertising data or proprietary ranking signals, such as popularity metrics. A five-person technical committee will oversee implementation, establish security protocols, and determine which firms qualify as legitimate competitors.
Whether this remedy will succeed remains uncertain. Alissa Cooper of Georgetown’s Tech Policy Lab notes that the one-time index disclosure omits ongoing “freshness” updates, and that crucial popularity signals were excluded from mandatory sharing. International Center for Law & Economics President Geoffrey Manne has questioned whether mandated data access can replicate the tacit knowledge and organizational competencies that make Google’s search effective. He argues that “[a]ntitrust remedies must fix the violation the court found,” and “[o]verly broad relief could ultimately hamper market-driven outcomes and harm consumers.”
The remedy also imposes substantial administrative costs. The technical committee must continuously evaluate which firms qualify for access, establish evolving standards for privacy and security, and monitor compliance. These ongoing obligations create opportunities for rent seeking, as firms lobby for favorable qualification standards or broader access to data. The court has effectively established itself as an ongoing regulator of search-data flows—precisely the role that economic theory suggests courts handle poorly.
A further question remains unaddressed: whether intervention was necessary at all. Google faces emerging competition from AI-powered search tools. OpenAI’s ChatGPT and Anthropic’s Claude answer many queries that previously required traditional search. Microsoft has integrated similar technology into its Bing search engine. Perplexity AI has attracted substantial venture funding to build competing search products.
These developments suggest the search market may be more contestable than the remedy assumes. If superior technology can overcome Google’s data advantages, mandated access may prove unnecessary, while creating dependencies that discourage rivals from developing alternative approaches.
The Proposed RealPage Settlement: Blocking Coordination Among Competitors
The RealPage case presents different problems. Rather than a dominant firm excluding rivals from data, horizontal competitors shared information through a common intermediary. The DOJ alleged that RealPage’s revenue-management products facilitated price coordination among competing landlords.
The DOJ describes a hub-and-spoke arrangement. Landlords using RealPage’s software submitted nonpublic data about current rents, lease terms, occupancy rates, and inventory forecasts. RealPage’s algorithm aggregated this information from competing properties and generated pricing recommendations that were allegedly designed to maintain high rents across participating landlords.
The claimed economic harm differs from Google’s exclusionary conduct. In competitive markets, firms set prices based on their own observations and bear the risk that competitors will undercut them to capture market share. Information exchange among competitors reduces this uncertainty. When rivals share a common understanding of each other’s pricing intentions through a mutually agreed-upon algorithm, they can align their strategies without explicit communication.
The November 2025 settlement prohibits RealPage from using competitors’ nonpublic information in its pricing software. Participating landlords must switch to proprietary systems that operate solely on each landlord’s internal data, plus publicly available market statistics. The software can no longer pool pricing information across properties with different owners. RealPage agreed to a three-year compliance monitor.
The settlement does not ban algorithmic pricing. Landlords may continue using revenue-management software, provided it functions as a calculator for individual firms rather than a coordinator for the industry.
Yet this remedy raises implementation challenges that may limit its effectiveness. The decree permits landlords to use publicly available data. Defining “publicly available” will prove critical. For example, the proposed settlement states:
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.
Thus, simply having a printout of the rental terms available in the property’s office would likely satisfy the “public data” definition.
Moreover, if landlords can purchase detailed market reports from data vendors like CoStar or Yardi, they may effectively reconstitute much of the information flow the settlement prohibits. Data vendors could aggregate information from multiple sources and sell it to competing landlords, achieving similar coordination through a different intermediary. The three-year compliance period may prove insufficient to identify and address such workarounds.
The remedy also assumes the problem required antitrust intervention, rather than contract reformation. Landlords who believed RealPage’s recommendations produced excessive vacancies could have switched to alternative pricing systems or renegotiated their contracts. The fact that many landlords continued using RealPage suggests they found the service valuable—possibly because the algorithm improved occupancy management, rather than because it facilitated collusion.
Distinguishing between efficient coordination of pricing decisions within a firm and anticompetitive coordination across firms presents conceptual difficulties when landlords outsource a portion of the pricing decision to a common vendor.
Why the Distinction Matters and Why Both Remedies Raise Concerns
The remedies diverge because the competitive harms diverge. Economic analysis distinguishes between vertical exclusion and horizontal coordination as separate threats to competition, requiring different responses.
In vertical-exclusion cases, a dominant firm controls access to an input that rivals need to compete. The U.S. Supreme Court’s 1912 decision in United States v. Terminal Railroad Ass’n required a consortium controlling a critical rail bridge to provide access to competing railroads on reasonable terms. The Google Search case was based on a theory that platform markets create similar bottlenecks through data, rather than physical assets. The court’s remedy in Google Search forces data sharing to enable rivals to develop competing products.
Horizontal coordination presents different dangers. When competitors share strategic information about current or future prices, they can achieve monopoly-level pricing without a formal agreement. The economic literature on oligopoly pricing demonstrates that information exchange reduces the strategic uncertainty that drives price competition.
The DOJ’s 2023 withdrawal of the 1996 Health Care Statements, which provided “safety zones” for certain data exchanges among competitors if information was aggregated, older than three months, and involved more than five participants, reflects recognition that mechanical rules no longer provide adequate protection. Modern algorithms can use aggregated historical data to facilitate coordination by revealing patterns in competitor behavior.
The proposed RealPage settlement illustrates this evolution. The company argued its data was aggregated and therefore safe under traditional antitrust analysis. The DOJ rejected this defense, reasoning that aggregation provides insufficient protection when an intermediary uses granular data to coordinate pricing recommendations. Even if Landlord A never sees Landlord B’s specific numbers, the algorithm takes both into account and incorporates B’s data into the price it recommends to A.
Both remedies, however, require ongoing regulatory oversight to function effectively. The technical committee overseeing implementation of the Google Search remedy must continuously evaluate evolving technological and competitive conditions. The RealPage compliance monitor must distinguish legitimate pricing optimization from prohibited coordination. These ongoing obligations create administrative costs and opportunities for strategic behavior by regulated parties.
Economic theory cautions that such arrangements often produce outcomes different from those intended by regulators, as firms adapt their behavior to comply formally, while preserving the substance of their original practices.
Implications for Enforcement and Compliance
These cases establish that the legality of data sharing depends on market structure and economic function. Firms that share data horizontally with competitors face substantial risk when the information relates to price, output, capacity, or strategic plans. Using a third-party intermediary—whether a traditional trade association or an AI platform—does not eliminate this risk if the intermediary’s product facilitates coordinated competitive decisions among users.
Firms operating platforms in concentrated markets face different risks. A dominant platform that refuses to share data or provide interoperability may face mandatory-access requirements if that data constitutes a barrier preventing rivals from offering competing products.
The DOJ has signaled similar scrutiny in ongoing litigation against Agri Stats Inc., a company that provides benchmarking data to meat processors. The government alleges that Agri Stats facilitates coordination by collecting and distributing detailed information about production levels, prices, and costs among competing firms.
Both the Google Search and RealPage remedies raise questions about the proper scope of antitrust enforcement. Courts function poorly as ongoing regulators of business conduct, as market participants possess better information about efficient business practices than judges (or, for that matter, sectoral regulators). The knowledge required to set appropriate terms for data access or to distinguish efficient information sharing from anticompetitive coordination exceeds judicial capacity. When remedies require sustained oversight, they create opportunities for error and capture that may harm competition, rather than promote it.
The alternative—allowing markets to address these problems through entry, innovation, and contract negotiation—carries its own risks. But these risks must be weighed against the demonstrated failures of judicial management of industry structure and conduct. The choice between imperfect markets and imperfect regulation requires acknowledging limitations on both sides.
