Former DOJ official blames lobbyist for weaker antitrust scrutiny

Roger Alford’s time at the Department of Justice (DOJ) may have been brief — much to the relief of the real estate industry — but that doesn’t mean he doesn’t have thoughts on his time there. 

Alford, a law professor at Notre Dame who served as an expert witness testifying against the real estate industry in the Sitzer/Burnett suit, was appointed deputy assistant attorney general in the DOJ’s Antitrust Division in early April. He held the same position during the first Trump administration. However, Alford was dismissed from the DOJ in late July. 

At the Tech Policy Institute Aspen Forum on Monday, Alford said he “loved” his time at the DOJ. But based on his time there, he believes there is currently a battle occurring between “genuine MAGA reformers and MAGA-In-Name-Only lobbyists.” 

“It’s a fight over whether Americans will have equal justice under [the] law, or whether preferential access to our justice system is for sale to the wealthy and well-connected,” he said. 

According to Alford, true MAGA Republicans, which he considers assistant attorney general Gail Slater to be, are working to remain true to the idea of equal justice under the law.

“Antitrust enforcement that applies equal justice under the law can prove that the DOJ is not for sale and deliver tangible results for millions of Americans,” he said. 

Alford said he is speaking out to restore integrity to the DOJ, and with it being still within the early days of the administration, he feels like the problem can be corrected. As Alford sees it, the issue is that Attorney General Pam Bondi has “delegated authority to leaders like her Chief of Staff Chad Mizelle and Associate Attorney General nominee Stanley Woodward who do not share her commitment to the rule of law and to one tier of justice for all.”

“With the DOJ led by a mix of officials with varying commitments to restore integrity to the Department of Justice, good may yet prevail, but at least with respect to senior DOJ oversight of antitrust enforcement, we are on a path toward injustice,” he wrote.

Antitrust laws are “nuisances or obstacles to overcome”

According to Alford, the MAGA-in-name-only lobbyists view antitrust laws as “nuisances or obstacles to overcome.”

“Rather than the legitimate lobbyists who have expertise and perform traditional functions of education and engagement, corrupt lobbyists with no relevant expertise are perverting actual law enforcement through money, power, relationships and influence,” he said. 

Alford accuses these lobbyists and those at the DOJ who are in their pocket of being swayed by special favors. 

“The ‘rule of lobbyists’ is to care deeply about benefits they can extract in transactional relationships with perceived friends,” he said.

If what Alford calls the ‘rule of lobbyists’ is allowed to prevail, he argues that this will lead to instability and a lack of uniformity when it comes to how antitrust law is enforced.

“Violations of antitrust laws impose grave risks to companies, including criminal prosecution, massive civil penalties, company breakups, and the blocking of mergers. Lawyers and their clients need a stable and predictable environment to do business,” Alford said. “I personally have heard lawyers say that the political uncertainty of this Administration is more difficult than the predictable but hostile environment of the Biden Administration.”

DOJ v. NAR

As the Trump administration prepared to take office, the real estate industry, which has been hampered by antitrust lawsuits for the past five years, was optimistic that the antitrust environment would look a bit different than it did under the Biden administration. 

While the DOJ has continued to express its belief that upfront offers of buyer broker compensation from either the seller or the listing broker create an anticompetitive environment, at least for the National Association of Realtors (NAR), the antitrust lawsuit load has lightened.

This summer NAR, as well as other real estate organizations and companies, were dismissed from three antitrust lawsuits, all which dealt with NAR’s three-way membership agreement and access to the MLS. Additionally, the DOJ has refrained from becoming involved in any of the real estate industry’s ongoing antitrust lawsuits via an amicus curiae brief or a statement of interest. 

However, NAR and the real estate industry in general, still remain targets for antitrust lawsuits, including one filed last week by Jorge Zea, a real estate broker in Florida, accusing NAR, local associations and MLSs of steering buyers to using buyer’s agents. 

“Little appetite for antitrust enforcement”

“By all indications there is very little appetite for antitrust enforcement from the DOJ,” Francis X. Riley, a partner at Saul Ewing LLP., said. “You still need your statutory disclosures if you are doing a merger and you still do a first request, but in terms of a second request or more formal investigations, we aren’t seeing that.” 

Riley believes this is foreshadowing a looser approach to consumer-related antitrust issues.

“They just aren’t doing anything,” he said. “They are letting these mergers go through with really limited investigations or limited exchange of information, and this sheds light on the fact that the DOJ is not going to be active in antitrust enforcement actions.” 

Instead, Riley believes consumer lawsuits will have to take the lead when it comes to antitrust lawsuits, which is what appears to be happening in the real estate industry.

However, given the DOJ’s history with NAR, it remains to be seen if the agency will continue to stay away. Additionally, it is unknown if the DOJ’s apparent easing of antitrust scrutiny on NAR is due to the trade group’s lobbying efforts as Alford alludes to, or if the Trump DOJ simply has a lesser appetite for antitrust enforcement.