If adherence to a common scheme or plan can be shown, the only remaining issue is whether or not the effect of the scheme or plan is to restrain trade. The conspiracy element is satisfied whenever two or more persons or entities carry out a common scheme or plan. The literal language of the Sherman Act sets forth two basic elements of any Section 1 violation: There must be (1) a contract, combination, or conspiracy that (2) restrains trade. Section 1 of the Sherman Act simply states that:Įvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade…is hereby declared illegal. Virtually all federal antitrust litigation alleges one or more violations of the Sherman Act. Over 100 years ago Congress adopted the Sherman Act as the foundation of federal antitrust law. In today’s business environment, it is a prerequisite to survival that brokers be conscious of and abide by the requirements of antitrust law. This dual tradition of competition and cooperation, which exists in few other professions, presents frequent opportunities for antitrust misconduct, whether intentional or inadvertent. Brokers vigorously compete to secure property listings to offer for sale, but they also regularly cooperate with one another, as subagents, buyers’ agents or “facilitators,” to identify ready, willing and able buyers for those listings. The nature of real estate practice makes real estate brokers particularly susceptible to antitrust challenges.
This means that the real estate brokerage business may be often under scrutiny, and any anti-competitive conduct is likely to be detected and prosecuted.
Real estate and housing issues are a vital concern of government at all levels. Awareness of and sensitivity to the antitrust laws is imperative for real estate brokers in today’s marketplace. The antitrust laws are designed and intended to protect competition and prevent monopolies.
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