Multiple Listing Arrangements in Residential Real Estate Transactions: An Antitrust Analysis

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Richard Epstein, Jul 10, 2008

Let me start this short paper on the antitrust law governing multiple listings in the real estate brokerage industry with a conventional account. Thereafter I shall try to explain why this account, while not wholly wrong, is in at least one important respect incomplete. This two-part journey addresses some of subtleties that are involved in cases of horizontal price-fixing in information markets, where intermediaries play a critical role in bringing together diffuse buyers and sellers on the opposite side of the same market. The antitrust case law on this issue is something of a jumble. Early cases on information exchange recognized that the sharing of information could both aid and restrict competition simultaneously. They are not all that clear in specifying exactly which forms of information-sharing among firms had which predominant effect. The reason for this persistent duality is not hard to fathom. Reliable information that is shared among competitors can facilitate the fixing of prices and the division of markets, both of which count as per se offenses under Section 1 of the Sherman Act. Yet by the same token, the sharing of information could allow for more efficient transactions among firms located at the same level inside the marketplace. The question is how to draw the appropriate lines between these two scenarios. As in all antitrust areas, there is no free lunch, for …

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