140. See infra Chapter III.C. 141. Although this area reports a range of statistics that purport to determine "market share," this Report makes no effort to define a pertinent antitrust market for this, or any other, analysis. 142. See, e. g., STEVE SAWYER, LOCAL PROPERTY MARKET COMPETITION: PROOFS AND INSIGHT FROM AN ANALYSIS OF 12 LOCAL MARKETS 3 (2005 ), available at http://www.
nsf/Pages/Sawyer05? OpenDocument (noting presence of "micro- markets" within cosmopolitan locations. For example, within the Washington, DC city, there is little or no competitors among buyers, sellers, and realty agents across the micro-markets of Montgomery County, MD, Fairfax County, VA, and southwest Washington, DC). 143. Yun, Tr. at 220. 144.
145. Lawrence Yun, Ph. D., Elder Economist, National Association of Realtors, Presentation at the Federal Trade Commission & Department of Justice Public Workshop: Competitors Policy and the Real Estate Industry, Property Brokerage Industry: Structure-Conduct-Performance, at 9 (Oct. 25, 2005) [hereinafter Yun Presentation], offered at http://www. ftc.gov/ opp/workshops/comprealestate/ yun. pdf. 146. Id.
Id. 148. NAR, Public Comment 208, at 7 (remark). 149. Id. 150. REALOGY, REALOGY SERVICE INTRODUCTION 4 (Dec - what does a real estate agent do. 2006), available at http://library. business- ir. net/library/19/ 198/198414/items/ 223251/RealogyDecember06% 20Final. what does a real estate agent do. pdf. 151. NAR, Public Remark 208, at 6 (" In a few markets, some companies may have a larger than usual market share, but market shares are known to change measurably from one year to the next.").
Re/Max Int' l, Inc. v. Real Estate One, Inc., 173 F. 3d 995, 1003 (6th Cir. 1999). 153. Mid-America Property Co. v. Iowa Real Estate Co., No. 4:04- CV-10175, 2004 WL 1280895, at * 8- * 9 & n. 5 (S.D. Iowa 2004), rev 'd on other grounds, 406 F. 3d 969 (8th Cir. 2005). 154. Shiawee X. Yang & Abdullah Yavas, Larger is Not Much Better: Brokerage and Time on the Market, 10 J.
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23, 27-28 (1995 ). The authors used a sample of 388 home sales in fiscal year 1991 from the multiple listing service. Id. at 27. 155. James E. Larson & Won J. Park, Non-Uniform Portion Brokerage Commissions and Property Market Efficiency," 17 JOURNAL OF THE AMERICAN REALTY AND URBAN ECONOMICS ASSOCIATION 422, 428-29 (1989 ).
See id. at 427-28. 156. 1983 FTC STAFF REPORT, supra note 9, at 102. As explained infra, however, this is not always the case with respect to the entry of brand-new organization designs in the realty brokerage industry. See infra Chapter IV. 157. Perriello, Tr. at 146. See likewise Lewis, Tr.
"); Hsieh, Tr. at 235 (" there's relatively complimentary entry into the profession and into the realty brokerage service."). The capability of newbie entrants to attract customers relative to more skilled representatives was not talked about at the Workshop and, likewise, is not addressed in this Report. 158. Yun, Tr.
159. Yun Discussion, supra note 145, at 5, 7. 160. Daniels, Public Remark 92, at 1. 161. NAR, Public Comment 208, at 5 (" An agent can acquire a broker's license, generally after having stayed in business for numerous years, and passing a broker's license test. The specific requirements vary by state.").
One author has described the service that brokers offer as not simply a completed match of purchaser and seller, but rather "a finished deal at some level of service offered to the parties involved." Geoffrey K. Turnbull, Real Estate Brokers, Nonprice Competition and the Housing Market, 24 REALTY ECONOMICS 293, 295 (1996 ).
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Id. The level to which brokers supply these services "provides the margin for nonprice competition amongst brokers." Id. 164. As gone over in Chapter I of this Report, refunds are a significant element of rate competitors between brokers in states that do not forbid refunds. Anti-rebate laws are talked about in more information in Chapter IV of this Report.
1983 FTC STAFF REPORT, supra note 9, at 64. See also id. at 55 (" [W] e found regional markets to consistently have commission https://www.instagram.com/accounts/login/?next=/wesleyfinancialgroupllc/%3Fhl%3Den modes at either six or 7 percent. These are the 'regular' modes for essentially all markets, despite how they might vary from one another, and nationwide a really high percentage of real estate brokerage deals occurred at a commission rate of one or the other.
The degree of rate uniformity we found clearly is irregular with a market defined by the particular type of vigorous competition typical in many other markets."). 166. See, e. g., Hsieh, Tr. at 261 (" [I] f you go back to the FTC report from more than 20 years earlier, things truly have actually not changed that much."); Bourgoin, Public Remark 30 Additional hints at 1 (" [T] he FTC did a study which was finished and published in 1983.
PROPERTY RES. 187, 187 (2001) (" A number of studies have argued that the harmony of the commission rate across different properties and areas is an indicator of collusive behavior."); Richard View website J. Buttimer, Jr., A Contingent Claims Analysis of Realty Listing Agreements, 16 J. REALTY FIN. & ECON.
some collusion between brokers through the [MLS] The main evidence provided is the near-uniformity of commission rates in an offered market. A common argument is that the effort needed to offer a home is not a direct function of the sales cost and that if there is not collusion amongst brokers, there should be, at the minimum, variation in commission rates across house rate ranges within a provided market.").
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See, e. g., American Bankers Association, Public Comment 10, at 1 (cover letter) (" [b] y any requirement, the realty brokerage market is substantially less competitive than it should be and commissions are synthetically high."); White, supra note 47, at 2 (" [A] more competitive outcome would definitely suggest that average fees would be lower than they are today which 'the 6% (or 7%) commission' would be unlikely to remain as the modal cost."); John C.
8, 2005) (noting "a fairly widespread view that brokerage is not a competitive market" based numerous understandings, consisting of: (1) extreme commission rates that are "sticky down" even as technology minimizes brokers' expenses; (2) commission rates are higher in the United States than in numerous other developed countries; (3) lobbying efforts by NAR and state Realtor associations in favor of state laws restricting competitors; (4) NAR's successful lobbying of Congress to prohibit banks from getting in the genuine estate brokerage business; and (5) NAR-imposed limitations on discount and Web brokers' access to the MLS).
See, e. g., GAO REPORT, GAO-03-749, Airline Company Ticketing: Effect of Modifications in the Airline Company Ticket Circulation Industry (July 2003) (going over how Web circulation decreased transaction expenses in the sale of airline tickets), offered at http://www. gao.gov/ brand-new - how to generate real estate leads. items/d03749. pdf; GAO REPORT, GAO/GGD -00- 43, Online Trading: Better Financier Protection Information Needed on Broker's Website (May 2000) (going over how Web brokerages charge far less commission per trade on securities), offered at http://www.
items/gg00043. pdf. 169. See Hahn, Tr. at 89; American Bankers Association, Public Remark 10, at 3. 170. American Bankers Association, Public Comment 10, at 3 (remark). 171. Id. at 1. 172. Id. at 4. A 2002 study evaluating commission rates in the United States and numerous other countries concluded that U.S.