140. See infra Chapter III.C. 141. Although this section reports a variety of statistics that profess to determine "market share," this Report makes no effort to specify a pertinent antitrust market for this, or any other, analysis. 142. See, e. g., STEVE SAWYER, RESIDENT PROPERTY MARKET COMPETITORS: PROOFS AND INSIGHT FROM AN ANALYSIS OF 12 RESIDENT MARKETS 3 (2005 ), available at http://www.
nsf/Pages/Sawyer05? OpenDocument (noting presence of "micro- markets" within urbane areas. For instance, within the Washington, DC metropolitan location, there is little or no competition among purchasers, sellers, and genuine estate representatives across the micro-markets of Montgomery County, MD, Fairfax County, VA, http://www.wesleygroupfinancial.com/when-it-finally-clicks-wesley-financial-group-reviews-strides-against-timeshare-fraud-problems/ and southwest Washington, DC). 143. Yun, Tr. at 220. 144.
145. Lawrence Yun, Ph. D., Senior Economist, National Association of Realtors, Discussion at the Federal Trade Commission & Department of Justice Public Workshop: Competitors Policy and the Realty Industry, Real Estate Brokerage Industry: Structure-Conduct-Performance, at 9 (Oct. 25, 2005) [hereinafter Yun Presentation], available at http://www. ftc.gov/ opp/workshops/comprealestate/ yun. pdf. 146. Id.
Id. 148. NAR, Public Remark 208, at 7 (comment). 149. Id. 150. REALOGY, REALOGY SERVICE SUMMARY 4 (Dec - how to generate real estate leads. 2006), offered at http://library. corporate- ir. net/library/19/ 198/198414/items/ 223251/RealogyDecember06% 20Final. how to take real estate photos. pdf. 151. NAR, Public Comment 208, at 6 (" In a couple of markets, some companies may have a bigger than usual market share, however market shares are understood to change measurably from one year to the next.").
Re/Max Int' l, Inc. v. Realty One, Inc., 173 F. 3d 995, 1003 (6th Cir. 1999). 153. Mid-America Property Co. v. Iowa Realty Co., No. 4:04- CV-10175, 2004 WL 1280895, at * 8- * 9 & n. 5 (S.D. Iowa 2004), rev 'd on other premises, 406 F. 3d 969 (8th Cir. 2005). 154. Shiawee X. Yang & Abdullah Yavas, Bigger is Not Much Better: Brokerage and Time on the Market, 10 J.
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23, 27-28 (1995 ). The timeshare in orlando authors used a sample of 388 house sales in calendar year 1991 from the multiple listing service. Id. at 27. 155. James E. Larson & Won J. Park, Non-Uniform Percentage Brokerage Commissions and Realty Market Efficiency," 17 JOURNAL OF THE AMERICAN PROPERTY AND URBAN ECONOMICS ASSOCIATION 422, 428-29 (1989 ).
See id. at 427-28. 156. 1983 FTC STAFF REPORT, supra note 9, at 102. As described infra, nevertheless, this is not always the case with regard to the entry of new organization models in the property brokerage industry. See infra Chapter IV. 157. Perriello, Tr. at 146. See also Lewis, Tr.
"); Hsieh, Tr. at 235 (" there's relatively complimentary entry into the occupation and into the property brokerage service."). The ability of beginner entrants to attract customers relative to more experienced representatives was not gone over at the Workshop and, similarly, is not attended to 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 Remark 208, at 5 (" A representative can obtain a broker's license, normally after having actually been in organization for numerous years, and passing a broker's license examination. The precise requirements differ by state.").
One author has actually described the service that brokers offer as not simply a completed match of purchaser and seller, but rather "a completed deal at some level of service offered to the parties included." Geoffrey K. Turnbull, Real Estate Brokers, Nonprice Competition and the Real Estate Market, 24 REALTY ECONOMICS 293, 295 (1996 ).
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Id. The extent to which brokers provide these services "supplies the margin for nonprice competitors among brokers." Id. 164. As talked about in Chapter I of this Report, refunds are a meaningful part of price competition between brokers in states that do not restrict refunds. Anti-rebate laws are gone over 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 local markets to regularly have commission modes at either six or 7 percent. These are the 'typical' modes for virtually all markets, regardless of how they might vary from one another, and nationwide a very high percentage of property brokerage deals occurred at a commission rate of one or the other.
The degree of rate harmony we discovered plainly is inconsistent with a market identified by the specific type of energetic competition typical in many other markets."). 166. See, e. g., Hsieh, Tr. at 261 (" [I] f you return to the FTC report from more than twenty years earlier, things actually have actually not altered that much."); Bourgoin, Public Remark 30 at 1 (" [T] he FTC did a study which was finished and released in 1983.
PROPERTY RES. 187, 187 (2001) (" A number of research studies have actually argued that the uniformity of the commission rate throughout different homes and regions is an indicator of collusive behavior."); Richard J. Buttimer, Jr., A Contingent Claims Analysis of Realty Listing Agreements, 16 J. PROPERTY FIN. & ECON.
some collusion in between brokers through the [MLS] The primary proof presented is the near-uniformity of commission rates in an offered market. A typical argument is that the effort needed to sell a home is not a direct function of the prices and that if there is not collusion among brokers, there ought to be, at the minimum, variation in commission rates throughout house cost ranges within an offered market.").
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See, e. g., American Bankers Association, Public Comment 10, at 1 (cover letter) (" [b] y any standard, the property brokerage market is substantially less competitive than it must be and commissions are synthetically high."); White, supra note 47, at 2 (" [A] more competitive result would certainly imply that average fees would be lower than they are today and that 'the 6% (or 7%) commission' would be not likely to remain as the modal fee."); John C.
8, 2005) (keeping in mind "a fairly widespread view that brokerage is not a competitive industry" based numerous understandings, including: (1) extreme commission rates that are "sticky down" even as innovation minimizes brokers' costs; (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 limiting competitors; (4) NAR's successful lobbying of Congress Additional reading to forbid banks from going into the real 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: Impact of Modifications in the Airline Ticket Circulation Market (July 2003) (going over how Web circulation lowered deal costs in the sale of airline company tickets), offered at http://www. gao.gov/ new - what are the requirements to be a real estate appraiser. items/d03749. pdf; GAO REPORT, GAO/GGD -00- 43, Online Trading: Better Investor Security Info Needed on Broker's Web Websites (May 2000) (talking about how Web brokerages charge far less commission per trade on securities), available 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 Remark 10, at 3 (comment). 171. Id. at 1. 172. Id. at 4. A 2002 research study examining commission rates in the United States and numerous other countries concluded that U.S.