What Gail Slater’s DOJ nomination means for real estate antitrust issues

Many real estate professionals were hoping that Donald Trump’s victory in the 2024 presidential election would lead to a lessening of antitrust scrutiny on the industry by the Department of Justice (DOJ). But Trump’s recent nomination of Gail Slater — a veteran technology and media policy adviser — to lead the DOJ’s antitrust division is casting doubt on these hopes.

“My gut tells me this isn’t going to be a good thing for us,” said Steve Murray, the co-founder of RealTrends Consulting. “It may be neutral at best, which just means that everything pretty much continues.”

“How this plays out remains to be seen as to focus on the realty industry, but those who believed there would be more of a ‘laissez faire’ philosophy at antitrust were certainly surprised by Ms. Slater’s nomination,” Chuck Cain, an attorney and the president of Alliance Solutions, added.

Prior to the nomination, Slater served as a policy adviser to vice president-elect JD Vance. During Trump’s first presidential term, she was a technology policy adviser at the National Economic Council. Slater is known as a bit of an antitrust hawk and has previously called for Google parent company Alphabet to be broken up. Like Vance, she has praised Federal Trade Commission (FTC) Chair Lina Khan for her work going after Big Tech under the Biden administration.

According to Murray, given Trump’s known negative feelings toward many Big Tech firms, Slater’s appointment shouldn’t come as a surprise. But while real estate isn’t on the same level as Big Tech, Murray doesn’t believe this means that the industry can let its guard down.

“If she is known to be aggressive in terms of antitrust, why should we think it could be any better for us?” Murray said. “Given the (Sitzer/Burnett) trial, jury verdict, settlement talks, why would I expect that she would think otherwise about our industry.”

Marx Sterbcow, the managing attorney at Sterbcow Law Group, shares a similar view.

“She does not like monopolistic practices and has long been in favor of using strong government antitrust enforcement powers to reign in those companies/associations who have used their market power to disadvantage smaller competitors or better yet new market disruptor entrants into the marketplace,” Sterbcow wrote in an email.

Sterbcow acknowledges that Slater does not have any specific knowledge or expertise in the real estate industry. But he doesn’t believe this will prevent her from continuing to pursue investigations and litigation against the National Association of Realtors (NAR) and other industry players.

“I would say the antitrust concerns of the DOJ’s real estate antitrust division will be evaluated over the next 24 months with the hopes that leadership from within the real estate brokerage industry emerges to correct some of the issues that have troubled the DOJ’s antitrust division. If she finds the marketplace isn’t working correctly, then NAR will be in the cross-hairs,” Sterbcow said.

Despite these feelings, Sterbcow said he does not see Slater as someone who will create new policies via enforcement actions.

It remains to be seen how this will play out for the real estate industry. But given the DOJ’s recent statement of interest in the Sitzer/Burnett suit — in which it took issue with buyer representation agreements — and its known dislike of cooperative compensation, things may not be looking up for industry professionals even with the change in administration.