Antitrust Law Daily Wrap Up, ANTITRUST—D.C. Super. Ct.: AvalonBay’s motion to dismiss RealPage suit denied, (Sep 25, 2025)

By Martin A. Steinberg, J.D.

The District of Columbia Attorney General plausibly alleged that AvalonBay’s participation in the broader RealPage rental-pricing conspiracy by combining allegations of parallel conduct with COVID-related “plus factor” facts.

A District of Columbia Superior Court denied AvalonBay Communities, Inc.’s motion for judgment on the pleadings in the District of Columbia’s antitrust case against RealPage, Inc., and multiple landlord defendants. The District alleges that RealPage and participating landlords conspired to inflate rental prices in violation of the D.C. Antitrust Act. AvalonBay argued that the District had not adequately alleged conspiracy and that statements made in a related Maryland action undercut the District’s claims, contending that only a “COVID theory” of collusion had been advanced and disavowed. The court rejected AvalonBay’s attempt to reframe or relitigate issues previously decided at the motion-to-dismiss stage, emphasizing that when allegations of parallel conduct are combined with COVID-related discussions as “plus factors,” the District has plausibly alleged AvalonBay’s involvement. Concluding that AvalonBay was not “clearly entitled to judgment,” the court denied the motion, allowing the claims against AvalonBay to proceed (District of Columbia v. RealPage, Inc., No. 2023 CAB 6762 (D.C. Super. ct. Sept. 26, 2025)).

Background. On November 1, 2023, the District of Columbia filed suit against RealPage, Inc. and fourteen of the city’s largest residential landlords, alleging a price-fixing conspiracy in violation of the D.C. Antitrust Act. The landlord defendants include Avenue5 Residential, LLC; AvalonBay Communities, Inc.; Bell Partners, Inc.; Bozzuto Management Company; Camden Development, Inc.; Equity Residential Management, LLC; Gables Residential Services, Inc.; Greystar Management Services, LLC; Highmark Residential, LLC; JBG Associates, LLC; Mid-America Apartments, LP; Paradigm Management II, LP; UDR, Inc. The claims against defendant William C. Smith & Co., Inc. were resolved in a Consent Judgment and Order issued on June 2, 2025.

The District asserts that the landlords collusively delegated rent-setting authority to RealPage through its YieldStar, LRO, and AIRM revenue management platforms, granting the company access to competitively sensitive rent data. RealPage allegedly used this information to generate algorithmic rent recommendations designed to maximize revenues and then monitored landlord compliance through direct inquiries, compliance reports, and real-time data tracking. The landlords are further accused of exchanging confidential information at weekly meetings, in RealPage-sponsored user groups, and at industry conferences. In January 2024, JBG, Highmark, and AvalonBay moved to dismiss under Rule 12(b)(6). The court dismissed AvalonBay while denying the other two motions.

The District filed an Amended Complaint on January 8, 2025, and AvalonBay filed its Motion to Dismiss on January 22, 2025. On April 7, 2025, the court denied AvalonBay’s Motion, and AvalonBay filed an Answer to the Amended Complaint on April 21, 2025, followed by the instant motion on July 14, 2025.

Relevant statute. The governing statute is the District of Columbia Antitrust Act, which provides that “[e]very contract, combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce all or any part of which is within the District of Columbia… [is] illegal.” Because Section 28-4502 mirrors Section 1 of the Sherman Antitrust Act, courts apply federal antitrust precedent when analyzing claims under the D.C. Antitrust Act. Section 1 does not condemn all restraints of trade, but only those arising from an agreement, combination, or conspiracy in restraint of trade. Courts therefore distinguish between unlawful collusion and “conscious parallelism,” instances where firms independently adopt similar pricing without an agreement, which, standing alone, does not constitute a Sherman Act violation.

Analysis. The court held that AvalonBay’s motion was effectively an attempt to reargue issues decided at the motion-to-dismiss stage and to import arguments from related litigation that were not binding in this case. The court reaffirmed its earlier conclusion that the District had adequately pleaded AvalonBay’s involvement in the alleged RealPage conspiracy by combining allegations of parallel conduct with COVID-related facts as plus factors. Because AvalonBay was not clearly entitled to judgment on the pleadings, its motion was denied.

AvalonBay argued that the Amended Complaint did not state a valid conspiracy claim against it under the D.C. Antitrust Act. Specifically, AvalonBay contended that the District relied exclusively on what AvalonBay labeled the “COVID theory,” allegations that landlords coordinated through RealPage during the pandemic by meeting to discuss the effect of COVID-19 on rent pricing. AvalonBay argued that, since the District had purportedly disavowed this theory in related litigation in Maryland, no plausible claim remained against it in this case.

The court began its analysis by considering whether AvalonBay’s motion was, in fact, an impermissible attempt at reconsideration. The court acknowledged that Rule 54(b) permits modification of interlocutory orders before final judgment, but emphasized that reconsideration is not a tool to relitigate already-decided issues. Numerous precedents, including cases in the District of Columbia and federal courts, establish that Rule 12(c) cannot be used to recycle arguments that were rejected at the motion-to-dismiss stage. AvalonBay’s motion was primarily devoted to challenging the April 7 order, particularly its conclusions on parallel conduct and the role of COVID-related allegations as a plus factor, arguments that had already been decided.

AvalonBay also urged the court to take judicial notice of filings in the Maryland action, Brown v. Highmark Residential, LLC, No. C-24-CV-25-003948 (Md. Cir. Ct.), particularly a sur-reply in which Maryland’s counsel stated that neither the District nor Maryland had alleged a distinct COVID-specific conspiracy. The court rejected this argument, explaining that while courts can take judicial notice of public records, there is a meaningful distinction between recognizing the existence of a judicial act, such as an order, and accepting the contents of a party’s brief in another case as binding. The court therefore declined to import a statement made in another jurisdiction into this proceeding, notably when the District itself disputed AvalonBay’s interpretation.

The court further examined AvalonBay’s claim that the District had conceded the non-viability of the COVID theory. It found that the District’s statements in opposition, namely that the COVID facts were alleged only as a “plus factor” supporting the broader RealPage conspiracy, were consistent with antitrust pleading standards. Under established law, plaintiffs may plead antitrust conspiracies by alleging parallel conduct coupled with additional facts that plausibly suggest coordination. The April 7 order had already found that, while parallel conduct allegations alone were insufficient, the COVID-related facts supplied a sufficient plus factor to push the claim against AvalonBay over the plausibility line.

Accordingly, the court concluded that AvalonBay’s reliance on the Maryland filing was misplaced and that the District had not conceded away its claims. Instead, the District continued to press a conspiracy theory rooted in allegations of parallel conduct and plus factors, including the COVID-related discussions. Given this posture, AvalonBay could not show that it was “clearly entitled to judgment” on the pleadings. The court emphasized that, on a Rule 12(c) motion, the facts must be viewed in the light most favorable to the non-moving party, in this case, the District. Doing so, AvalonBay had not demonstrated the absence of a genuine issue of material fact or that dismissal at this stage was appropriate.

The Case is No. 2023 CAB 6762.

Judge: Matini, S.

Attorneys: Adam Gitlin, Office of the Attorney General, for the District of Columbia. Stephen Weissman (Gibson, Dunn & Crutcher LLP) for RealPage, Inc. Paul C. Cuomo (Baker Botts LLP) for AvalonBay Communities, Inc. and Avenue5 Residential, Inc.

Companies: RealPage, Inc.; AvalonBay Communities, Inc.; Avenue5 Residential, Inc.

Cases: Antitrust DistrictofColumbiaNews GCNNews