Meet the Lobbyists Running Cover for Harlan Crow and Price-Fixing Landlords

The National Multifamily Housing Council took a page from Justice Clarence Thomas’ nondisclosure playbook.

BY SAM KNIGHT | September/October 2023

This article is from Dollars & Sense: Real World Economics, available at http://www.dollarsandsense.org

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An influential lobbying group wants the public to know that RealPage—a software company accused of helping landlords fix rental prices—has been unduly maligned. The National Multifamily Housing Council (NMHC) sounded the alarm on its website in late December 2022, through an informational article they posted as part of an educational outreach campaign on antitrust lawsuits and federal investigations into the use of software to determine rents. Readers likely included powerful people or their employees: the NMHC is a prominent and effective agent in Washington, D.C., working on behalf of landlords, staking out numerous policy positions hostile to the interests of people just scraping by to pay rent.

Unsurprisingly, the group’s effort to “educate” the public was incomplete, as one might expect from a lobbying group and trade association whose loyalties are at odds with the general public. The NMHC claimed that the lawsuits were absurd because no single “owner/operator can ‘set’ rents for an entire market,” but in fact the allegations involve a multitude of owners using commonly available software from RealPage to engage in cartel-like behavior, illegally colluding to keep prices high instead of competing to benefit consumers, as free market actors are supposed to do, according to orthodox economists and federal law. The NMHC also failed to let its readers know that RealPage, a firm based in suburban Dallas, Texas, is among the council’s most generous funders, having given hundreds of thousands of dollars to the council through membership fees, sponsorship deals, and political campaign donations.

Also left out of the article posted on the council’s website: the NMHC itself was mentioned by litigants as playing a role, albeit a peripheral one, in facilitating the alleged price-fixing scheme. The NMHC didn’t even bother identifying either RealPage or YieldStar in its “educational” material, despite RealPage being the only software company last year whose rental “revenue management” services led to congressional scrutiny and regulatory investigations—the result of a ProPublica exposé published in October 2022. By November 2022—well before the NMHC launched its educational outreach campaign—the Justice Department’s Antitrust Division had already opened a probe into the company.

The Harlan Crow Connection

If the council did name RealPage in its informational article, even without explicitly disclosing the financial ties between the software company and the NMHC, readers could have used publicly available information to educate themselves about the NMHC’s interest in the company. And months after publication of the article on the NMHC’s website, readers could have connected RealPage to the stories that sparked the ongoing ethics scandal casting the legitimacy of the Supreme Court into disrepute: reporting on the series of generous gifts from real estate billionaire Harlan Crow to Justice Clarence Thomas and Thomas’ family, which the justice failed to disclose, in bombshell reports by ProPublica in April and May 2023. RealPage has been a “strategic” partner of Crow’s $29 billion family firm, Crow Holdings, since 2019. The conflict of interest, and the absence of a declaration recognizing the conflict, are magnified by the fact that the NMHC itself is led by Ken Valach, CEO of three Crow Holdings subsidiaries. It’s lack of disclosure all the way down.

The Supreme Court has issued several rulings favorable to the real estate industry, including its decision to put an end to the federal pandemic eviction moratorium in August 2021. The NMHC and Crow Holdings lobbied for the outcome, and the latter did what it could as a landlord by filing to evict 122 tenants while the moratorium was in effect. Justice Thomas did not recuse himself from ruling on the case, and it wasn’t until the ProPublica investigation months later that anyone knew the justice should have considered doing so.

Whatever the effect of real estate money on the judiciary, the NHMC, like any good lobbyist, throws around large amounts of it to peddle influence in Washington, D.C. In 2022 alone, the organization spent $6.8 million on lobbying and $3.4 million on political campaign donations, according to the Center for Responsive Politics. The Real Deal, a real estate industry publication, called the NMHC “the most influential national trade group for large multifamily landlords,” noting its efforts to push back against the movement for nationwide rent control. One of the group’s more recent policy conferences in Washington, D.C., in October 2022, featured lawmakers who oversee the finance industry as speakers: senators Tim Scott and Patrick McHenry, the top Republicans on the Senate Banking Committee and the House Financial Services Committee, and senators Kyrsten Sinema and Bob Menendez, Democratic caucus members on the Senate Banking Committee. Menendez was recently indicted on federal bribery charges involving gold bars and hordes of cash; Sinema is known for shamelessly appealing to big-money donors while legislating on their behalf.

RealPage Execs Brag of “Driving” Rent Hikes

Some of RealPage’s payments to the NMHC give the company special access to meetings like the one that featured Scott, McHenry, Sinema, and Menendez. The company paid $50,000 this year to sponsor the NMHC’s “Chair’s Circle.” The distinction, according to the NMHC’s promotional materials, enables its purchaser in 2024 to enjoy “prominent marketing and branding benefits throughout the year, and [at] every major NMHC meeting.” The subscription is ideal “for firms who participate in multiple NMHC programs and meetings on a yearly basis,” according to the trade association’s promotional literature.

According to plaintiffs in one class action suit, these meetings gave RealPage and property management companies “opportunities to conspire.” The litigation cited how RealPage’s promotional material marketed directly to NMHC members, which touted the company’s software as a tool “leveraging millions of units of real-time lease transaction [data].”

RealPage is among another exclusive minority of NMHC members: the company registered five of its subsidiaries as dues-paying members (there are currently around 2,050 dues paying members ), according to the organization’s membership directory. Last year, RealPage paid the NMHC $42,500 in membership fees for six entities when it only costs $6,500 for a company to join at the lowest level of membership. Trade associations typically keep their membership lists closely guarded, but the NMHC temporarily granted public access to its membership database, which it “mysteriously” removed from its website this summer, according to the Revolving Door Project. But even if this disclosure was never made, records that the trade association can’t scrub from the internet show substantial ties between RealPage and the NMHC: RealPage employees have donated more than $300,000 in the past decade to the NMHC’s political action committee, according to federal campaign disclosures.

The facts of the case, as alleged, don’t look good for the defendants: RealPage and some of the commercial landlords who have used the company’s YieldStar software, including at least three NMHC “Chair’ s Circle” members (Greystar Real Estate Partners, Equity Residential, and Camden Property Trust). ProPublica detailed how YieldStar recommended rental prices to property managers based on an algorithm coded with data submitted by users themselves, meaning it made recommendations to landlords that took into account their competitors’ prices. Users are discouraged from rejecting the software’s suggestion, and 90% of the algorithm’s recommendations are ultimately accepted. The software is designed to counteract the downward pressure on prices caused by leasing agents having “too much empathy,” a YieldStar developer named Jeffrey Roper told ProPublica.

The ProPublica exposé also featured quotes from RealPage executives in a promotional video, boasting how they were partially responsible for sharp rent hikes throughout the United States over the past few years. “Never before have we seen these numbers,” said Jay Parsons, RealPage’s vice president, citing 14.5% rental revenue growth. Another RealPage executive, Andrew Bowen, bragged that YieldStar was “driving it, quite honestly...very few of us would be willing to actually raise rents double digits within a single month by doing it manually.”

“Pushing People Out” Pays

“Exchanges of information between competitors—particularly pricing information—is inherently suspect under the antitrust laws,” the National Law Review noted in its commentary on the allegations. “Whether joint price setting is accomplished through the functionality of a database platform or by conventional means makes no difference, price fixing is unlawful per se.”

Making matters more awkward for defendants, the ProPublica report detailed how Roper (one of the YieldStar developers) was at the center of a 30-year-old airline price-fixing scandal, which also featured a scheme based on software, estimated to have cost passengers more than $1 billion between 1988 and 1992. Eight airlines ended up agreeing to drop their use of common software to set prices in settlements with federal antitrust authorities.

Roper was hired by RealPage in 2004 to work on software the company bought from Camden Property Trust. His impact seemed to have been immediate. By 2006, Camden CEO Ric Campo praised YieldStar for helping his company boost profits at tenants’ expense, as rental turnovers spiked 15%. “The net effect of driving revenue and pushing people out was $10 million in income,” Campo said. “I think that shows keeping the heads in the beds above all else is not always the best strategy.”

In the 2010s, YieldStar came to dominate the rental management software market, in a process catalyzed by the Justice Department’s decision to allow RealPage to acquire a YieldStar competitor in 2017. The merger doubled YieldStar’s subscriber base. By 2020, the company claimed that its users managed 19.7 million rental units, meaning its software had the potential to affect the cost of rent for almost half of all tenants in the United States, with 43 million rental units available nationwide that year.

An example of RealPage’s effect was found by ProPublica in one Seattle neighborhood, where 70% of rental units were owned by just 10 landlords, “every single one...used pricing software sold by RealPage.” At one of the property management firm’s buildings, rent was up “42% since 2012 … steeper than the 33% average increase for similar downtown buildings.” A former tenant recalled moving out of the neighborhood in 2021 after being told that her monthly rent would be increased by 33%.

The judiciary certainly believes that this series of facts merits legal intervention. On August 8 of this year, a federal district judge in Tennessee refused some defendants’ requests to dismiss the case. To rub salt in RealPage’s wounds, Essex Property Trust, one of the co-defendants, has “been cutting back on its RealPage use ahead of the lawsuits,” according to a Real Deal report on the rejected motion to dismiss.

Still, it’s not all good news for the plaintiffs. Victory in antitrust lawsuits can be underwhelming. In 2015, for example, tech workers only received $6,500 each in a settlement with major Silicon Valley companies that had entered into a four-year cartel-like agreement to keep their wage costs down by refusing to hire each other’s workers. Trade publication TechCrunch called the sum “paltry” compared to the likely effect of the agreement on tech salaries at the time. (Not a terribly surprising outcome when considering the first landmark antitrust bill signed into law, the Sherman Act of 1890, was initially used by federal prosecutors to pursue more cases against labor leaders for organizing unions than industrialists for colluding to form cartels).

But more worryingly, RealPage will be able to appeal any damages all the way to the Supreme Court, and it will do so with the help of lobbyists and trade associations who themselves will push the envelope in their defense of vicious exploitation.

SAM KNIGHT is a Washington, D.C.,-based reporter who has been doing watchdog policy reporting for 10 years.

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