PLATKIN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MATTHEW J. PLATKIN, Attorney

General of the State of New Jersey, et al.,

Plaintiffs,

Civil Action No. 25-3057

v.

OPINION

REALPAGE, INC., et al.,

Defendants.

ARLEO, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court by way of five separate motions to dismiss the

Plaintiffs’ Complaint.1 See ECF Nos. 115, 116, 117, 118, 120.2 Each motion is opposed. See

ECF Nos. 139, 140, 141, 142, 143. For the reasons stated below, the Joint MTD, ECF No. 115;

AION MTD, ECF No. 116; K&C MTD, ECF No. 117; Russo MTD, ECF No. 118; and AvalonBay

MTD, ECF No. 120, are each GRANTED in part and DENIED in part.

1 Plaintiffs are Matthew Platkin, Attorney General of the State of New Jersey, and Jeremy Hollander, Acting Director

of the New Jersey Division of Consumer Affairs (collectively, “Plaintiffs”). The Plaintiffs bring this case pursuant to

the Attorney General’s authority to bring civil enforcement actions under each of these statutes. See ECF No. 1,

Compl., at ¶ 17; see also 15 U.S.C. § 15c; N.J.S.A. §§ 56:8-8, 56:8-11, 56:9-6, 56:9-10(a).

2 Defendants RealPage, Inc. (“RealPage”), Morgan Properties Management Company, LLC (“Morgan”), The Kamson

Corporation (“Kamson”), LeFrak Estate, L.P. (“LeFrak”), Greystar Management Services, LLC (“Greystar”), AION

Management, LLC (“AION”), Cammeby’s Management Co. of N.J., L.P. (“Cammeby’s”), Veris Residential, Inc.

(“Veris”), and Bozzuto Management Company (“Bozzuto, and with the preceding Defendants, the “Joint

Defendants”), have jointly moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

(“Rule 12(b)(6)”). See ECF No. 115 (“Joint MTD”). In addition to joining the Joint MTD, Defendants AION,

Kamson, and Cammeby’s have filed their own supplemental motions to dismiss under Rule 12(b)(6). See ECF No.

116 (“AION MTD”); ECF No. 117 (“K&C MTD”). Defendants Russo Development, LLC and Russo Property

Management, LLC (collectively, “Russo”) have filed an independent motion to dismiss under Rule 12(b)(6). See ECF

No. 118 (“Russo MTD”). And Defendant AvalonBay Communities, Inc. (“AvalonBay,” collectively with the Joint

Defendants and Russo but excluding RealPage, the “Defendant Landlords,” and collectively with all other Defendants,

the “Defendants”) has also filed an independent motion to dismiss under Rule 12(b)(6). See ECF No. 120

(“AvalonBay MTD”).

I. FACTUAL BACKGROUND3

This case is one of several currently pending lawsuits against RealPage and various

landlords asserting violations of federal and state antitrust laws based on a price-fixing conspiracy

facilitated by RealPage’s Revenue Management Software (“RMS”).4 The cases, including this

lawsuit, assert that landlords have agreed to provide RealPage with their non-public, competitively

sensitive data, which is then used by the algorithms powering RealPage’s RMS to inflate rental

prices to supracompetitive levels.

According to the Plaintiffs, the Defendant Landlords agreed to ignore market dynamics

and instead delegate their pricing authority to RealPage’s RMS in various New Jersey housing

markets. This, Plaintiffs assert, represents unlawful collusion in violation of the Sherman Antitrust

Act (“Sherman Act”), 15 U.S.C § 1; the New Jersey Antitrust Act (“NJAA”), N.J.S.A. § 56:9-3;

and the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. § 56:8-1, et seq.

A. Development and Functioning of RealPage’s RMS

RealPage is a Texas corporation that provides different technology-based products and

services to real estate owners and property managers. See Compl. ¶¶ 18, 30. This includes RMS

products that are designed to help landlord’s maximize revenue on multifamily housing units they

rent. See id. ¶¶ 6, 32.

3 The Court draws these facts from the Complaint and certain exhibits the Parties attached to their filings that are the

proper subject of judicial notice at this stage. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir. 1997) (explaining a court may consider documents “integral to or explicitly relied upon in the” complaint when

deciding a motion to dismiss (quotation marks omitted)).

4 See, e.g., In re RealPage, Inc., Rental Software Antitrust Litig. (No. II), No. 23-3071 (M.D. Tenn.); Commw. of Ky.

ex rel. Att’y Gen. Russell Coleman v. RealPage, Inc., et al., No. 25-93 (E.D. Ky.) (“Coleman”); Dist. of Columbia v.

RealPage, Inc., No. 2023-CAB-6762 (D.C. Super. Ct.); Brown v. Highmark Residential, LLC, et al., No. C-24-CV-

25-3498 (Cir. Ct. Baltimore City).

RealPage offers three different RMS products: YieldStar, Lease Rent Options (“LRO”),

and AI Revenue Management (“AIRM,” and collectively with YieldStar and LRO, the “RM

Products”). See id. ¶¶ 6, 30, 32. In 2002, RealPage launched the first of these RM Products,

YieldStar. See id. ¶ 38. Around the same time, a competitor launched LRO. See id. ¶ 44. Over

the next decade-and-a-half, use of RMS grew significantly, with YieldStar and LRO representing

“the two largest RM products for rental real estate in the United States.” Id. ¶¶ 43, 46.

Then, in 2017, RealPage acquired LRO. See id. ¶ 46. Between these two products,

RealPage has amassed a vast repository of data on multifamily housing units across various

markets in the United States and “solidified its position as the dominant player in the revenue

management space.” Id. ¶¶ 32, 46, 47. That position was further entrenched in 2020, when

RealPage expanded the scope of its offerings and launched AIRM, which is a more advanced RMS

tool that incorporates machine learning into its price modeling. See id. ¶ 48.

All three of these RM Products are “functionally similar.” Id. ¶ 32. Each uses an algorithm

that is programmed to “push rents higher” and “minimize[e] the frequency and magnitude of . . .

rent decreases.” Id. ¶¶ 114. The algorithms pull from a shared data repository managed and

controlled by RealPage that includes competitively sensitive, proprietary, non-public information

provided by landlords, such as occupancy rates, inventory, prices of actual leases, concessions

offered to tenants, weekly totals of prospective tenants visiting properties, amenities and rental

unit values, and pricing strategies (collectively, “Confidential Data”). See id. ¶¶ 5, 32, 79, 88–89.

With this information, each RM Product “estimate[s] supply and demand for multifamily housing

that is specific to particular geographic areas and unit types, and then generate[s] a price to charge

for renting those units that maximizes the landlord’s revenue.” Id. ¶ 32.

More specifically, each RM Product uses the Confidential Data to generate a market range

for each unit and floor plan. See id. ¶¶ 118–19, 122, 127. The algorithms are programmed to

never recommend prices below the bottom of the range, which represents a “hard floor,” but

regularly recommend prices above the top of the range, which represents a “soft ceiling” that

accounts for the changing, competitively sensitive inputs accessible to the algorithms. Id. ¶¶ 120–

22, 127–29. This often means landlords maintain vacancies to hold rental prices high instead of

lowering prices to fill their vacant units. See id. ¶¶ 3, 67, 131, 171. Although this cuts against

typical market dynamics, by following the RMS’s generated rental prices, RealPage touts that

landlords can enjoy revenue increases from two to seven percent. See id. ¶¶ 9, 163.

Although these rental prices are framed as “recommendations,” RealPage has created a

multi-layered system to monitor landlords compliance with the prices generated by its RMS. First,

on the front-end, RealPage trains landlords that contract to use its RM Products to “be compliant”

and impose the rents generated by its RMS “90+% percent of the time.” Id. ¶¶ 134–36. As part

of this training, landlords are “command[ed]” to turn on a feature that will automatically accept all

of the RMS’s pricing recommendations. Id. ¶¶ 139–40. They are also instructed not to reveal that

their rental properties are priced using RealPage’s RMS and to instead represent that their units

are “individually priced.” Id. ¶ 147.

Second, to manage the RMS while its being used, RealPage has created an administrative

infrastructure intended to dissuade landlords from deviating from the RMS’s pricing

recommendations. If landlords opt not to turn on their RM Products’ auto-accept features, they

still are only permitted to “override” a price recommendation if they submit a “written explanation

[to RealPage] for why they wish to depart from the RealPage-generated rent.” Id. ¶¶ 137, 143.

And if landlords get this far, they will then be contacted by a RealPage Pricing Advisor, who “will

not accept landlords’ explanations for proposed overrides except in extenuating circumstances,”

such as “a recent natural disaster.” Id. ¶¶ 137, 145.

Third, on the back-end, RealPage itself polices compliance with its RMS’s pricing

recommendations in several ways. It uses “secret shops,” which are instances in which a RealPage

employee calls a property pretending to be a renter, to ensure that landlords are presenting pricing

information for their units consistent with RealPage’s training. Id. ¶¶ 146–47, 214. It has

programmed its RMS to calculate landlords’ compliance rates, i.e., how often the landlords are

“imposing the RealPage generated rent.” Id. ¶ 148. And, it hires Pricing Analysts to create “Rate

Acceptance and Lease Compliance Analysis” reports that “identify detached potentially at-risk

clients, properties that need additional training, or opportunities for parameter and strategy

alignment.” Id. ¶¶ 149, 153. Simply put, RealPage pays to identify any landlord that is departing

from the agreement to fix prices according to the RMS and then actively seeks to “discipline that

member into adhering to the RealPage-generated prices.” Id. ¶ 149.

This system has ensured strong adherence to the RMS’s generated prices. RealPage retains

ninety-five percent of all landlords that contract to use one of its RM Products. See id. ¶ 150.

Among these landlords, “[o]verrides are exceedingly rare” and RealPage-generated rents are

imposed “the vast majority of the time, in some instances 90% of the time or greater.” Id. ¶ 151.

The “rare” repeat offenders ultimately lose their access to the RMS. Id. ¶ 150.

B. Defendant Landlords Agree to Use RealPage’s RM Products to Set Rent

Following RealPage’s ascension as the “dominant player in the revenue management

space,” id. ¶ 46, Defendant Landlords entered contracts with RealPage to use the RM Products and

coordinate pricing for their New Jersey multifamily rental units, see id. ¶¶ 19–28, 33, 35 (stating

that the Defendant Landlords entered contracts with RealPage in 2017 or have contracted to use at

least one of the RM Products for “at least the past six years,” i.e., since 2019). These landlords

own a significant share of various multifamily rental units in geographic markets across the State,

and their arrangements with RealPage mean that more than 90,000 multifamily rental units are

now priced according to RealPage’s RMS. See id. ¶¶ 52–54, 192–93, 195–98.

The Defendant Landlord’s decision to enter contracts with RealPage and price their rental

units based on its RMS was “a fundamental departure from the traditional competitive marketplace

that historically existed for multifamily rentals” because by doing so, competitors were

transformed into collaborators. Id. ¶¶ 5, 55–56. Pursuant to these contracts, the Defendant

Landlords agreed to provide their “valuable proprietary data”—i.e., Confidential Data—to

RealPage and allow RealPage to use this data to power its RM Products. Id. ¶ 37. The contracts

require the Defendant Landlords to provide RealPage with “correct and accurate” Confidential

Data. Id. ¶ 80. They know that their competitors’ agreements with RealPage obligate them to do

the same. See id. ¶¶ 80, 81, 83–84. Indeed, the contracts make clear that the RMS will rely upon

the Confidential Data in its price modeling to “deliver value” to all landlords using the service. Id.

¶ 37. Thus, each Defendant Landlord “know[s] that their competitors’ information,” in

conjunction with their own, “is being used to generate the rents [RealPage’s RMS recommends

that] they charge” for their units. Id. ¶ 80–81, 83. To access the service, the Defendant Landlords

also agreed to pay “substantial” fees, including “an initial set-up fee” and a subsequent “monthly

fee for each multifamily residential unit” priced using the RMS. Id. ¶ 36.

On top of this exchange of information designed to power the RMS algorithms, RealPage

provides certain landlords with access to certain “non-aggregated” data, such as “property-specific

occupancy and rent data at the floorplan level for competitor properties.” Id. ¶ 85. The Defendant

Landlords were also invited to, and did, participate in different virtual and in-person forums, which

included regularly scheduled user group meetings and conferences for landlords using RealPage’s

RMS, that directly facilitated the further exchange of Confidential Data. See id. ¶¶ 87–92, 97–98,

105–08, 110. Certain Defendant Landlords used these forums to exchange information about

property visits and applications—the type of non-publicly available information that relates

directly to demand. See id. ¶¶ 93–94. Others used the forums to coordinate pricing strategies

following the onset of the COVID-19 pandemic. See id. ¶¶ 99–104. And to help further solidify

this price-fixing scheme, certain of the Defendant Landlords agreed, “at RealPage’s behest,” to

consult with and recruit other landlords to become RealPage RMS users. Id. ¶¶ 65–66.

One Defendant Landlord, AvalonBay, is subject to a unique agreement with RealPage. It

contracted with RealPage to use LRO. See id. ¶ 20. But pursuant to its contract, RealPage is

“restricted . . . from sharing AvalonBay’s [Confidential] [D]ata with other landlords,” referred to

as the Input Representation provision, “or incorporating other landlords’ [Confidential] [D]ata

when calculating [AvalonBay’s] rents,” referred to as the Data Entry Representation provision

(collectively, the “Data Restriction Provisions”). Id.; see also ECF No. 120.1, AvalonBay MTD,

Ex. 1 (“Master Service Agreement”), § 4.5. However, Plaintiffs allege this is a “nominal[]”

restriction that AvalonBay circumvents to partake in this price-fixing conspiracy. See Compl.

¶ 20. Specifically, AvalonBay is alleged to participate in (and, in certain circumstances, lead)

regularly scheduled LRO User Group meetings where they exchange Confidential Data with other

Defendant Landlords. See id. ¶¶ 90, 93, 96–98. They also allegedly helped devise and propose

algorithmic amendments to RealPage to ensure LRO did not propose rental price reductions based

on certain market circumstances (like the COVID-19 pandemic). See id. ¶¶ 99–104.

By agreeing to use RealPage’s RMS to set their rental prices, the Defendant Landlords

have been able to increase rental rates and revenue despite decreasing occupancy rates, difficult

market conditions, or rent control ordinances. Id. ¶¶ 163, 166, 168–71, 196, 218. Plaintiffs assert

that this has been achieved through unlawful means.

Specifically, in Count I, Plaintiffs allege that the arrangement between RealPage and the

Defendant Landlords constitutes a hub-and-spoke price-fixing conspiracy in violation of the

Sherman Act. See id. ¶¶ 226–33. In Count II, they assert that this same conspiracy violates the

NJAA. See id. ¶¶ 234–41. In Count III, they claim that this same conspiracy also constitutes a

violation of the NJCFA. See id. ¶¶ 242–25. In Count IV, they allege that Defendants engaged in

certain unconscionable commercial practices, misrepresentations, and knowing omissions in

violation of the NJCFA. See id. ¶¶ 246–61.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (3007). A claim is facially plausible “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept all factual allegations as true

and draw all reasonable inferences in favor of the plaintiff. See Huertas v. Bayer US LLC, 120

F.4th 1169, 1174 (3d Cir. 2024). The standard is “not akin to a probability requirement, but it asks

for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678

(quotation marks omitted).

III. DISCUSSION

A. Plaintiffs’ Federal Antitrust Claim

The Sherman Act broadly outlaws “[e]very contract, combination . . ., or conspiracy in

restraint of trade.” 15 U.S.C. § 1. Despite its breadth, courts have interpreted its language to only

prohibit “concerted action that unreasonably restrains trade.” Pa. Dental Ass’n v. Med. Serv.

Ass’n, 745 F.2d 248, 255 (3d Cir. 1984). Thus, to plead a violation of the Sherman Act, a plaintiff

must allege (1) concerted action, and (2) that the concerted action imposes an unreasonable

restraint on trade. See Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).

Here, all motions to dismiss contend only that Plaintiffs have failed to allege “concerted

action.”5 Concerted action is defined as a “unity of purpose[,] or a common design and

understanding[,] or a meeting of minds[,] or a conscious commitment to a common scheme.”

Burtch, 662 F.3d at 221 (quotation marks omitted). Simply put, concerted action requires “the

existence of an agreement” between competitors. Ins. Brokerage, 618 F.3d at 315 (quotation

marks omitted).

Alleged anticompetitive agreements can take one of three forms: a horizontal conspiracy,

a vertical conspiracy, or a hub-and-spoke conspiracy. A horizontal conspiracy involves an

agreement between “competitors at the same level of the market structure.” United States v. Topco

Assocs., Inc., 405 U.S. 596, 608 (1972). A vertical conspiracy involves an agreement between

“combinations of persons at different levels of the market structure.” Id. A hub-and-spoke

conspiracy is a hybrid agreement that involves elements of both horizontal and vertical

5 The second element of the pleading standard—whether the conduct unreasonably restrains trade—is analyzed under

either the per se standard or the rule of reason. See Burtch, 662 F.3d at 221. The per se standard applies when a

practice, “on its face, has no purpose except stifling competition.” Eichorn v. AT&T Corp., 248 F.3d 131, 143 (3d

Cir. 2001) (quotation marks omitted). An agreement to fix prices is a “paradigmatic example” of an inherently

anticompetitive practice that falls under the per se standard, and it is therefore “conclusively presumed to unreasonably

restrain competition.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 316–17 (3d. Cir. 2010) (quotation marks

omitted); see also United States v. Apple, Inc., 791 F.3d 290, 322–25 (2d Cir. 2015) (explaining that hub-and-spoke

price fixing conspiracies are considered inherently anticompetitive and subject to the per se standard).

Here, Plaintiffs claim the alleged hub-and-spoke conspiracy represents a price-fixing agreement and therefore

constitutes a per se violation of the Sherman Act. See Compl. ¶¶ 232, 240. No Defendants substantively argue

otherwise. The Joint Defendants state in a footnote that they “disagree” with this characterization. See Joint MTD at

15 n.3. But this alone is insufficient to warrant the Court’s consideration. See John Wyeth & Bro. Ltd. v. CIGNA

Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments raised in passing (such as, in a footnote), but not

squarely argued, are considered waived.”). Accordingly, the Court only addresses whether Plaintiffs have plausibly

alleged concerted action.

conspiracies. See Howard Hess Dental Lab’ys, Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 254–55

(3d Cir. 2010). It involves a central actor, the “hub,” who coordinates anticompetitive vertical

agreements with market competitors, the “spokes,” as well as an anticompetitive horizontal

agreement among the competing “spokes” (creating the “rim” of the conspiracy). Id. at 255. “In

all hub-and-spoke conspiracies, the horizontal agreement among the spokes supports the

agreements between the hub and each spoke, and vice versa.” Ins. Brokerage, 618 F.3d at 347.

Here, Plaintiffs are alleging the existence of a hub-and-spoke conspiracy, with RealPage serving

as the “hub” and the Defendant Landlords acting as the competing “spokes.” See ECF No. 139

(“Joint Opp.”) at 16–17.

At the pleading stage of an antitrust case, factual allegations must not be assessed in

isolation, but holistically. See Ins. Brokerage, 618 F.3d at 326 (explaining that the court “must

examine the entirety of the complaint[’s] factual allegations and determine whether, taken as true,

they support a plausible inference” of conspiracy (emphasis added)). Plaintiffs only need to allege

“enough factual matter (taken as true) to suggest that an agreement was made.” Twombly, 550

U.S. at 556. This can be accomplished by sufficiently alleging the existence of either direct or

circumstantial evidence. See Lifewatch Servs., Inc. v. Highmark, Inc., 902 F.3d 323, 333 (3d Cir.

2018). Direct evidence “is explicit and requires no inferences to establish the proposition or

conclusion being asserted.” InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159 (3d Cir. 2003)

(quotation marks omitted). If the complaint contains direct evidence, “a court need go no further

on the question of whether an agreement has been adequately pled.” W. Penn Allegheny Health

Sys, Inc. v. UPMC, 627 F.3d 85, 99 (3d Cir. 2010).

This “proverbial smoking gun,” however, is often difficult to come by, and most plaintiffs

therefore seek to plead and prove antitrust conspiracies through “circumstantial evidence (and the

reasonable inferences that may be drawn therefrom).” InterVest, 340 F.3d at 159 (quotation marks

omitted). Because § 1 of the Sherman Act does not outlaw unilateral conduct, mere allegations of

parallel conduct among competitors, without more, are insufficient to plausibly plead the existence

of a conspiracy from circumstantial evidence. See Twombly, 550 U.S. at 556–57. Instead,

Plaintiffs must allege “both parallel conduct and something ‘more,’” often referred to as “plus

factors.” Lifewatch, 902 F.3d at 333.

Often, “the ‘critical issue’ for establishing a hub-and-spoke conspiracy is determining ‘how

the spokes are connected to each other.’” Cornish-Adebiyi v. Caeser’s Ent., Inc., No. 23-2536,

2024 WL 4356188, at *3 (D.N.J. Sept. 30, 2024) (quoting Ins. Brokerage, 618 F.3d at 347). Here,

Defendants argue that Plaintiffs have failed to allege sufficient circumstantial evidence to infer

that the competing spokes—the Defendant Landlords—entered an interconnected horizontal

agreement. See Joint MTD at 17–31; AION MTD at 10–13; K&C MTD at 14–20; Russo MTD at

17–22; AvalonBay MTD at 24–34.6 As part of this argument, they contend that these allegations

represent impermissible group pleading. See Joint MTD at 24–25; AION MTD at 13–16; Russo

MTD at 11 n.5, 16–17. Separately, the Joint Defendants argue that Plaintiffs have failed to allege

any evidence to support vertical agreements to restrain trade between RealPage and the Defendant

Landlords. See Joint MTD at 32–34. And AvalonBay distinctly argues, based on its unique

agreement with RealPage, that Plaintiffs have failed to adequately state its involvement in the

alleged conspiracy. See AvalonBay MTD at 18–24. The Court considers each argument in turn.

6 Across their multiple motions to dismiss, the Defendants all make similar arguments that Plaintiffs’ allegations of

parallel conduct and plus factors are insufficient to infer the existence of a horizontal agreement to fix prices. The

Court therefore addresses these arguments collectively. Where Defendants Cammeby’s, Kamson, AION, or Russo

make unique arguments, the Court addresses those specifically.

1. Plaintiffs Sufficiently Plead the Existence of a Horizontal Agreement

Among the Defendant Landlords.7

a. Plaintiffs Plead Parallel Conduct and Plus Factors.

Plaintiffs seek to plead the existence of a horizontal agreement among the Defendant

Landlords through alleged circumstantial evidence. See Joint Opp. at 18. But Defendants argue

that they fail to sufficiently plead either the parallel conduct or plus factors necessary to support a

claim based on circumstantial evidence. The Court disagrees and finds Plaintiffs have sufficiently

pleaded the horizontal component of their hub-and-spoke conspiracy.

Parallel conduct is any “parallel behavior that would probably not result from chance,

coincidence, independent responses to common stimuli, or mere interdependence unaided by an

advance[d] understanding among the parties.” Twombly, 550 U.S. at 556 n.4. This may include

the parallel adoption of certain business practices or policies, or “parallel pricing changes.” In re

RealPage, Inc., Rental Software Antitrust Litig. (No. II), 709 F. Supp. 3d 478, 501 (M.D. Tenn.

2023) (“RealPage MDL”); see also Lifewatch, 902 F.3d at 333–34 (holding that the adoption of

the same business practice among competitors was sufficient to plead parallel conduct).

Although parallel conduct “gets the complaint close to stating a claim,” to establish

plausibility, a plaintiff must provide further “factual enhancement” to “raise[] a suggestion of a

preceding agreement, not merely parallel conduct that could just as well be independent action.”

Twombly, 550 U.S. at 557. This comes by pleading the existence of “at least one ‘plus factor.’”

Ins. Brokerage, 618 F.3d at 323.

Plus factors recognized by the Third Circuit include: (1) allegations of motive, (2) conduct

contrary to independent self-interest, or (3) facts suggestive of a traditional conspiracy. See In re

7 In this subsection, references to “Defendant Landlords” excludes AvalonBay, who is separately addressed by the

Court. See infra § III.A.3.

Choc. Confectionary Antitrust Litig., 801 F.3d 383, 398 (3d Cir. 2015). “Evidence of a motive to

conspire means the market is conducive to price fixing, and evidence of actions against self-interest

means there is evidence of behavior inconsistent with a competitive market.” Id. Evidence of a

traditional conspiracy consists of “non-economic evidence that there was an actual manifest

agreement not to compete,” and may include “proof that the defendants got together and exchanged

assurances of common action or otherwise adopted a common plan even though no meetings,

conversations, or exchanged documents are shown.” In re Flat Glass Antitrust Litig., 385 F.3d

350, 361 (3d Cir. 2004) (quotation marks omitted). The court “must assess plus factors

holistically,” not individually. RealPage MDL, 709 F. Supp. 3d at 510 (citing Continental Ore Co.

v. Union Carbide & Carbon Corp., 370 U.S. 690, 698–99 (1962)); see also Valspar Corp. v. E.I.

Du Pont De Nemours & Co., 873 F.3d 185, 193 (3d Cir. 2017) (explaining that, absent allegations

that the relevant market is an oligopoly, “plus factors are weighed together”).

Defendants argue that Plaintiffs have merely pleaded that each of the Defendant Landlords

entered licensing agreements with RealPage to use its RMS, which represents parallel conduct

consistent with each’s individual economic self-interest. But Defendants take a short-sighted view

of the Complaint.

First, Plaintiffs plausibly allege parallel conduct. Specifically, they claim that after

Defendant Landlords entered contracts with RealPage, they departed from the “traditional,

competitive marketplace that historically existed for multifamily rentals” and engaged in parallel

shifts regarding (1) their pricing priorities, and (2) their information exchange practices. Compl.

¶¶ 5, 55–56. Before agreeing to price their rental units according to RealPage’s RMS, the

Defendant Landlords competed on pricing with a goal “to increase occupancy” rates in their

multifamily housing units. Id. ¶ 55. Afterwards, however, they agreed to prioritize increasing

rental prices over filling vacancies. See id. ¶¶ 3, 56, 67, 131, 162, 166, 171, 196. To facilitate this

shift, they agreed to exchange their previously non-public Confidential Data with RealPage—

knowing that their fellow competitors are doing the same—to power RealPage’s RMS and the

rental price recommendations they receive from it. See id. ¶¶ 35, 37, 79–81, 83–84. They also

exchange this information directly with one another through different digital and in-person forums

RealPage has organized for its RMS users. See id. ¶¶ 87–94, 97–108, 110. These parallel changes

in pricing priorities and business practices sufficiently allege parallel conduct. See Duffy v. Yardi

Sys., Inc., 758 F. Supp. 3d 1283, 1293 (W.D. Wash. 2024) (holding that landlords using RMS

engaged in parallel conduct “by agreeing to use Yardi’s products, delegating their pricing decisions

[to Yardi], and de-prioritizing occupancy in favor of algorithmic pricing”); RealPage MDL, 709

F. Supp. 3d at 504–08 (similar); Coleman, No. 25-93, ECF No. 129 at 12–14 (similar).8

Second, Plaintiffs accompany these allegations of parallel conduct with “at least one ‘plus

factor.’” Ins. Brokerage, 618 F.3d at 323. Specifically, their allegations regarding the Defendant

Landlords exchange of Confidential Data allows the Court to plausibly infer the existence of a

preceding price-fixing agreement. Defendant Landlords argue that it is in the self-interest of each

of them to license RealPage’s RMS and maximize their revenue streams. But doing so requires

that they disclose their Confidential Data to RealPage to be used by the RMS for the benefit of

their competitors also licensing RealPage’s software. See Compl. ¶¶ 37, 80. It is not in any

Defendant Landlord’s self-interest to provide RealPage with “its proprietary commercial data” that

8 The Joint Defendants argue that Plaintiffs cannot “seek refuge in the RealPage MDL decision” because that decision

relied on regression analyses of the price changes that occurred in four markets, whereas Plaintiffs here do not. See

Joint MTD at 26. However, Plaintiffs have alleged a shift in pricing strategy sufficient to constitute parallel conduct.

At this stage, that is sufficient. Plaintiffs will eventually be held to their proofs, but they need not proffer detailed

statistical regression analysis at the pleading stage. See, e.g., Duffy, 758 F. Supp. 3d at 1292 (holding that allegations

that landlords, following agreements to access Yardi’s RMS, de-prioritized occupancy in favor of algorithmic

pricing—absent any proffered regression analysis—was sufficient to state parallel conduct).

it knows RealPage will then use “to recommend rental prices to its competitors,” unless each

Landlord Defendant knows that RealPage is requiring the same information sharing from each

Defendant Landlord’s competitors as well and “they are receiving in return the benefit of their

competitors’ data in pricing their own units.” RealPage MDL, 709 F. Supp. 3d at 510; see also

Compl. ¶¶ 5, 79–81. Simply put, the Defendant Landlords are engaging in parallel information

sharing that is “inconsistent with a competitive market” because doing so promotes an axiomatic

anticompetitive end—price fixing. Choc. Confectionary, 801 F.3d at 398; see also Todd v. Exxon

Corp., 275 F.3d 191, 198 (2d Cir. 2001) (“Information exchange is an example of a facilitating

practice that can help support an inference of a price-fixing agreement.”); In re Broiler Chicken

Antitrust Litig., No. 16-8637, 2025 WL 461407, at *4 (N.D. Ill. Feb. 11, 2025) (“It is well-settled

that the exchange of price information among competitors is indicative of [an] anticompetitive

agreement.”).9

But there is more. Plaintiffs’ alleged parallel conduct is also bolstered by additional factual

allegations that support other recognized plus factors, including:

• Motive. Defendant Landlords have an incentive to license RealPage’s RMS to maximize

profits. See Compl. ¶¶ 9, 32, 161, 163. The coordination of Confidential Data provided

by RealPage’s RMS allows Defendant Landlords to continue pushing price increases and

profit margins, even when market conditions would otherwise warrant price reductions or

lead to losses. See id. ¶¶ 99–104, 168–71. This profit motive is appropriate to consider in

light of the other allegations of “concerted, collusive conduct” offered by Plaintiffs. See

Burtch, 662 F.3d at 229.

• Motive/Market Structure. The multifamily housing rental market is also “conducive to

price-fixing.” Choc. Confectionary, 801 F.3d at 398. Because shelter is a necessity, the

9 Indeed, it is the specific nature of Plaintiffs’ allegations regarding Defendant Landlords’ knowing exchange of non-

public, Confidential Data that distinguishes this case from the other out-of-District RMS cases that Defendants rely

upon—as those cases themselves recognize. See In re Passenger Vehicle Replacement Tires Antitrust Litig., 767 F.

Supp. 3d 681, 716 (N.D. Ohio 2025); Dai v. SAS Institute, Inc., No. 24-2537, 2025 WL 2078835, at *4–5 (N.D. Cal.

July 18, 2025); Cornish-Adebiyi, 2024 WL 4356188, at *5–7; Gibson v. Cendyn Grp., LLC, 2024 WL 2060260, at

*4 n.7 (D. Nev. May 8, 2024). And, in any event, none of those decisions are binding on this Court.

New Jersey multifamily rental market is highly inelastic—i.e., demand will remain

consistent, even in response to significant price increases. See Compl. ¶ 156. High barriers

to entry, in the form of significant building costs, have constrained supply. See id. ¶ 158.

And high switching costs create conditions under which renters are more likely to expect

and accept price increases then seek out cheaper alternatives. See id. ¶ 159. Agreeing to

coordinate price increases for similar rental units further dampens any incentive renters

may have to seek cheaper alternatives under this market structure and gives landlords

further incentive to collude. See In re Blood Reagents Antitrust Litig., 756 F. Supp. 2d

623, 631–32 (E.D. Pa. 2010) (explaining certain aspects of market structure, including

“high barriers to entry” and “inelastic demand,” “are each conducive to transforming []

motive into action”).

• Action Against Economic Self-Interest. Defendant Landlords are recruiting competitors

to use a tool that is designed to provide them with a competitive advantage on pricing to

maximize their revenue streams. See Compl. ¶¶ 65–66, 77–78. That is “inconsistent with

a competitive market,” Choc. Confectionary, 801 F.3d at 398—unless the success of the

tool actually depends on the recruitment of competitors because it is powered by the

anticompetitive exchange of information.

• Action Against Economic Self-Interest. Defendant Landlords pay “substantial” fees to

RealPage to license its RMS, including an “initial set up fee” and a “monthly fee for each

multifamily residential unit” priced according to the RMS. See Compl. ¶ 36. It is

reasonable to infer that Defendant Landlords do not pay these “substantial” fees to access

a tool that they then regularly disregard. Id.; see also RealPage MDL, 709 F. Supp. 3d at

511.

• Traditional Conspiracy. RealPage has organized different digital and in-person forums

and regular user group meetings for its RMS users where competitors can further exchange

Confidential Data and which provide an opportunity to “exchange[] assurances of common

action.” Flat Glass, 385 F.3d at 361; see also RealPage MDL, 709 F. Supp. 3d at 511;

Compl. ¶¶ 87–94, 97–98, 105–08, 110.

• Traditional Conspiracy. RealPage has created a multi-layered enforcement system that

involves training and monitoring to enforce adherence to the RMS-generated prices. See

Compl. ¶¶ 134–49, 152–53. This provides an assurance to each Defendant Landlord that

horizontal competitors are complying with the terms of the conspiracy. See RealPage

MDL, 709 F. Supp. 3d at 511.

The Defendants attempt to equate the information sharing alleged here with what occurred

in Insurance Brokerage. But the situation is unanalogous. That case alleged that brokers were

sharing commission rates with competing insurers to organize a price-fixing conspiracy. See 618

F.3d at 329. But the insurers were dependent on the brokers to access clients—i.e., to obtain

business. See id. at 328. It was therefore in each insurers’ economic self-interest to obtain this

information to match or exceed competitors’ commission rates; otherwise, they would lose out on

potential business. See id. at 332. Here, no similar market dynamic is alleged. The Defendant

Landlords are not reliant on RealPage for business, and RealPage possesses no market power in

the Defendant Landlords’ markets—they do. Moreover, the Defendant Landlords are sharing their

Confidential Data with RealPage to allow RealPage’s algorithm to inform the price that their

competitors should charge. That is not in their economic self-interest.

Defendants also contend that the Plaintiffs have fallen short of their pleading burden to

allege parallel conduct in three ways: (1) Defendant Landlords conduct was not identical; (2)

Defendant Landlords did not act at or about the same time; and (3) Defendant Landlords can

override the RMS’s pricing recommendations. No argument is persuasive.

First, parallel conduct need not be identical; instead, plaintiffs only need to allege “that

defendants ‘acted similarly.’” See In re Generic Pharms. Pricing Antitrust Litig., 338 F. Supp. 3d

404, 442 (E.D. Pa. 2018) (quoting Petruzzi’s IGA Supermarkets, Inc. v. Darling- Delaware Co.,

998 F.3d 1224, 1243 (3d Cir. 1993); see also SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d

412, 427–29 (4th Cir. 2015). Defendants argue that Plaintiffs have failed to allege parallel conduct

because each of the Defendant Landlords used different RM Products. See Joint MTD at 22;

Compl. ¶ 33. But to gain access to any of them, they each had to contractually agree to share their

Confidential Data with RealPage and allow RealPage to use this data to power all of the RM

Products. Compl. ¶¶ 5, 35–37, 79–81. And all three are “functionally similar.” Id. ¶ 32. They all

rely on the same “shared” data repositories. Id. ¶¶ 32, 79. They all are programmed to use the

Confidential Data provided by landlords to establish price ranges that push rents higher, even when

market conditions may warrant price decreases. Id. ¶¶ 114, 118–22, 127–31, 168–71. And they

all contain auto-accept pricing features and are supported by a monitoring system designed to

prevent users from deviating from the RMS-generated rent prices—which users, including

Defendant Landlords, therefore adopt the “vast majority of the time.” Id. ¶¶ 137, 139–40, 143,

145, 151.10 In short, by contracting to use any of the RM Products, the Defendant Landlords

agreed to “act[] similarly.” Petruzzi, 998 F.3d at 1243.11

Second, parallel conduct need not be simultaneous. See Interstate Cir. v. United States,

306 U.S. 208, 227 (1939) (“It is elementary that an unlawful conspiracy may be and often is formed

without simultaneous action or agreement on the part of the conspirators”). This is particularly

true in the context of a hub-and-spoke conspiracy. See United States v. Masonite Corp., 316 U.S.

265, 274–75 (1942) (explaining that it was insignificant in a hub-and-spoke conspiracy if the

“spokes” independently entered contracts with the “hub” at different times without knowledge that

their agreement was “part of a larger arrangement” if, “as the arrangement continued[,] each

became familiar with [the conspiracy’s] purpose and scope” and agreed to adhere to it).

Here, although Plaintiffs do not allege that the Defendant Landlords all entered contracts

with RealPage to access its RMS at the same time, they do allege that in those contracts, Defendant

Landlords were agreeing to immediately share their Confidential Data with RealPage and knew

10 Russo relies on an email chain that was excerpted in Plaintiffs’ Complaint that it claims shows that it rejected an

RMS-generated price. See ECF No. 118-2, Russo MTD, Ex. A; Compl. ¶¶ 128, 189. But the email only shows that

a Russo employee informed a RealPage employee that Russo was “leaning towards” deviating from the RMS-

generated price and that “it would be helpful to have further discussion on the topic.” See Russo MTD, ECF No.

118.1, Ex. A. It then shows the RealPage employee elevated the issue to a pricing advisor. Such action is consistent

with Plaintiffs’ allegations of how RealPage responds to push back from landlords. See Compl. ¶ 145. It also does

not demonstrate that Russo ultimately rejected this RMS-generated price. And even if it could be so construed, it is

but one example of one Defendant Landlord rejecting an RMS-generated price and does not contradict Plaintiffs’

allegation that these prices are adopted “the vast majority of the time.” Compl. ¶ 151.

11 Cammeby’s and Kamson contend that the Complaint claims that they used LRO, that LRO functions differently

from YieldStar and AIRM, and that these differences defeat allegations of parallel conduct. See K&C MTD at 14–

16. But the Complaint states that all three RM Products are “functionally similar.” See Compl. ¶ 32. All three rely

on Confidential Data pulled from a shared repository of information managed by RealPage, see id. ¶¶ 32, 79; all three

are programmed to establish supracompetitive prices, see id. ¶¶ 118–22, 127–31; and, all three have auto-accept

features that RealPage “command[s]” users to turn on, see id. ¶¶ 139–40. These allegations sufficiently plead parallel

functioning across LRO, YieldStar, and AIRM. Accord Duffy, 758 F. Supp. 3d at 1291 n.1 (“Defendants cannot

obtain a dismissal at the pleading stage by ignoring or challenging the facts alleged.”).

other competitors were agreeing to do the same. See Compl. ¶¶ 37, 80–81, 83–84. They also

allege that RealPage was immediately taking steps to enforce adherence with the RMS-generated

rental prices, and that users, including Defendant Landlords, adopted these prices at a significant

rate. Id. ¶¶ 134–51. This represents “[a]cceptance by competitors, without previous agreement,

of an invitation to participate in a plan” and is sufficient to establish parallel conduct. Masonite,

316 U.S. at 275 (quotation marks omitted); see also In re MultiPlan Health Insurance Provider

Litigation, 789 F. Supp. 3d 614, 637 (N.D. Ill. 2025) (holding that an agreement among health

insurers to use an algorithm to calculate prices for out-of-network care that the insurers began to

use at different times was sufficient to allege parallel conduct because “concurrent adoption of a

price-fixing scheme is not required to prove parallel conduct”).

Defendants attempt to elide this conclusion by pointing to Burtch v. Milberg Factors, Inc.,

but that case is of no help to them. There, the court found no parallel conduct sufficient to support

a credit-denying conspiracy where, at different times, certain of the alleged conspirators were

extending unlimited credit to plaintiff, others were extending plaintiff credit for a limited set of

purchases, and others were denying plaintiff credit. See 662 F.3d at 228–29. There are no

allegations of similar disparate conduct among the alleged conspirators here.12

12 The Defendants also argue that Plaintiffs fail to specifically allege when each Defendant Landlord contracted with

RealPage and organized the alleged conspiracy. See Joint MTD at 22–23. But each Defendant Landlord “can

determine when and where it is alleged that it entered the alleged conspiracy merely by looking at its contract with

RealPage.” In re RealPage, Inc., Rental Software Antitrust Litig. (No. II), 709 F. Supp. 3d 537, 542 (M.D. Tenn.

2023) (“RealPage MDL II”). Moreover, Plaintiffs do allege the following: RealPage became the “dominant player in

the revenue management space” in 2017 after it acquired LRO, Compl. ¶ 46; that same year, certain Defendant

Landlords entered contracts with RealPage, see id. ¶ 23; and, by 2019, all Defendant Landlords had entered into

contracts with RealPage, see id. ¶¶ 19, 21–22, 24–28. The reasonable inference from these allegations is that

Defendant Landlords began to conspire with RealPage following its ascension to the top of the RMS market in 2017,

and that all had entered the conspiracy by 2019, at which point its impact in the asserted New Jersey markets began

to be effectively measurable (i.e., the relevant period is 2019 through the present).

Third, the fact that the RMS-generated rental prices are framed as “recommendations” does

not undermine Plaintiffs’ allegations of parallel conduct. That is because the “theoretical ability

to deviate from a [RealPage]-calculated rate does not mean [landlords] actually reject [RealPage’s]

recommendations in practice.” MultiPlan, 789 F. Supp. 3d at 638. Despite their best efforts,

Defendants cannot turn Plaintiffs’ allegations into something they are not. Plaintiffs claim that

RealPage goes to great lengths to ensure and enforce compliance with the “recommendations”

offered by its RM Products. See Compl. ¶¶ 134–49, 153. This includes training users, including

Defendant Landlords, to “be compliant” and “command[ing]” them to turn on auto-accept features.

Id. ¶¶ 134, 139–40. It includes imposing administrative roadblocks and demanding justifications

for deviations to discourage overrides. See id. ¶¶ 137, 143, 145. And it includes monitoring

compliance rates. See id. ¶¶ 146–49, 153, 214. Plaintiffs further allege that this system functions

as intended, prompting users, including Defendant Landlords, to accept and use the RMS-

generated prices for their units “the vast majority of the time,” including as significant as ninety

percent of the time or greater. Id. ¶ 151. Simply put, “[w]hether or not [RealPage’s] calculated

rates are labelled as ‘recommendations,’ the [P]laintiffs plausibly allege that they are more akin to

mandates.” MultiPlan, 789 F. Supp. 3d at 638.

In sum, Plaintiffs’ allegations of parallel conduct and “plus factors” are sufficient to infer

the Defendant Landlords reached a preceding agreement to fix prices in accordance with

RealPage’s RMS.

b. Plaintiffs’ Allegations Do Not Constitute Impermissible Group

Pleading.

Defendants also object that, despite having access to pre-suit discovery from similar,

pending litigation, Plaintiffs’ factual allegations supporting the horizontal component of their hub-

and-spoke conspiracy are marred by insufficient group pleading.13 See Joint MTD at 24–25;

AION MTD at 13–16; Russo MTD at 11 n.5, 16–17. They chide Plaintiffs for only specifically

referencing certain named Defendants several times and instead collectively asserting allegations

as to “Defendant Landlords” or “Defendants” throughout the Complaint. This, they contend, lacks

the specificity necessary to plausibly plead that each Defendant Landlord participated in or agreed

to join the conspiracy. As an example, they emphasize Plaintiffs’ only generally claim that all

Defendant Landlords followed the RMS’s price recommendations “the vast majority of the time,”

and fail to state each’s specific compliance rate with the RMS-generated prices to support this

broad assertion. See Joint MTD at 24. Plaintiffs counter that Defendants are attempting to hold

them to a significantly higher pleading standard than Twombly requires, and that their allegations

satisfy Twombly’s demands. See Joint Opp. at 27–29. The Court agrees with Plaintiffs.

As this Court has previously recognized, a complaint engages in impermissible group

pleading only if it “lumps” defendants together and “does not allege any facts to permit an

inference that an individual defendant should be equally liable, such as a complaint that implies

an individual defendant was uninvolved.” Zanfardino ex rel. Zerify, Inc. v. Kay, No. 22-7258,

2023 WL 8232896, at *4 (D.N.J. Nov. 28, 2023) (quotation marks omitted). By contrast, a

complaint that collectively alleges that Defendants “have committed multiple similar acts of

wrongdoing” and “permit[s] an inference that each Defendant should equally be liable” adequately

puts “Defendants on notice of the claims against each of them.” Id. (quotation marks omitted).

This applies equally in the antitrust context, where myriad courts have held that allegations of

13 The pleading standard is not elevated because Plaintiffs obtained pre-suit discovery. See In re Air Cargo Shipping

Servs. Antitrust Litig., No. 06-1775, 2010 WL 10947344, at *10 (E.D.N.Y. Sept. 22, 2010) (explaining that “having

access to more information” before filing a complaint “does not require plaintiffs to plead with greater factual

specificity than” what Twombly and Iqbal require—i.e., enough facts to state a plausible claim for relief).

conspiracy need not be detailed on a defendant-by-defendant basis. See, e.g., In re Processed Egg

Prods. Antitrust Litig., 821 F. Supp. 2d 709, 719 (E.D. Pa. 2011); In re OSB Antitrust Litig., No.

06-826, 2007 WL 2253419, at *5 (E.D. Pa. Aug. 3, 2007); see also Duffy, 758 F. Supp. 3d at 1290

(“[T]here is no need to provide defendant-specific allegations beyond those that raise a plausible

inference that they each joined the [same] anti-competitive scheme.”).

Here, Plaintiffs satisfy this standard. They allege that each Defendant Landlord entered

into a contract with RealPage. See Compl. ¶¶ 19, 21–28, 35. Per this contractual arrangement,

each Defendant Landlord obtained a license to one of RealPage’s three RM Products. See id. ¶ 33.

They each agreed to provide RealPage with their Confidential Data, knowing their competitors

were doing the same, and knowing this Confidential Data would be collectively used by

“functionally similar” RM Products to generate inflated rental prices that each competitor should

charge. See id. ¶¶ 32, 37, 79–81, 83–84. They also each agreed to shift from prioritizing

occupancy rates to adhering to the supracompetitive prices generated by RealPage’s RMS, with

an understanding that RealPage could and would enforce each’s compliance with these prices. See

id. ¶¶ 3, 55, 67, 131, 134–49, 153, 162, 171.

These allegations, even when referring to “Defendants” or “Defendant Landlords”

together, put “Defendants on notice of the claims against each of them.” Zanfardino, 2023 WL

8232896, at *4. They state that the Defendant Landlords “have committed multiple similar acts

of wrongdoing” and “permit an inference that each Defendant should equally be liable” for their

role in this price-fixing conspiracy. Id.; see also Duffy, 758 F. Supp. 3d at 1290 (holding that

collective allegations that defendants entered into RMS-licensing agreements as part of the same

price-fixing scheme was sufficient to satisfy notice requirements of Rule 8); RealPage MDL II,

709 F. Supp. 3d at 542–43 (holding that the argument that allegations collectively asserted against

landlord defendants constituted impermissible group pleading was “unserious” and that defendants

had sufficient notice of the conspiracy alleged and their role within it).

Defendants nonetheless argue that the lack of specific allegations related to certain

Defendant Landlords undermines the conclusion that they agreed to participate in the alleged

conspiracy. They also contend that the general allegations about Defendant Landlords’ adherence

to the RMS-generated prices fails to support an inference that each Defendant Landlord did in fact

adopt these prices at similar rates. But both arguments fail for the same reason: they scrutinize

Plaintiffs’ allegations in a vacuum.

First, the factual allegations about specific Defendant Landlords “must be viewed through

the lens of this larger price-fixing conspiracy.” Jung v. Ass’n of Am. Med. Colleges, 300 F. Supp.

2d 119, 166 (D.D.C. 2004); see also Ins. Brokerage, 618 F.3d at 326 (explaining that a court must

“examine the entirety of the complaint[’s] factual allegations” to determine if “they support a

plausible inference of horizontal conspiracy” (emphasis added)). Defendants’ focus on the few

instances in which, for example, LeFrak, Veris, or AION are specifically mentioned by name

improperly views these allegations in isolation. See Joint MTD at 25; AION MTD at 10–12; see

also Jung, 300 F. Supp. 2d at 166–67 (explaining that a defendant mischaracterized the complaint

“by limiting the scope of the claim to the [three] allegations that explicitly name” that one

defendant). Considered holistically, the Court finds that these specific references to certain

Defendant Landlords provide additional examples of facts representing “plus factors” that

reinforce the plausibility of Plaintiffs’ allegations of parallel conduct, which is otherwise

adequately pleaded.

Second, Plaintiffs allegations that all landlords that use RealPage’s RMS adopted its price

“recommendations” the “vast majority of the time,” Compl. ¶ 151, must too be analyzed in the

context of the “entire[]” Complaint, Ins. Brokerage, 618 F.3d at 326. When assessed holistically,

it is reasonable to infer that the Defendant Landlords nearly always adopt the RMS-generated

rental prices.14 On the one hand, Defendant Landlords have an incentive to follow these prices.

Plaintiffs claim that Defendant Landlords are making “substantial payments” to RealPage to access

its RMS, including a fee for each pricing “recommendation” it provides per unit. Id. ¶ 36. It is

reasonable to infer that the Defendant Landlords would not pay for an expensive tool they intended

to regularly disregard, and that they therefore abide by the “recommendations” the RMS provides.

On the other hand, RealPage enforces compliance. It actively seeks to prevent or subsequently

address instances of non-compliance. Id. ¶¶ 137, 145–49, 153. This makes deviations from its

price recommendations “the rare exception.” Id. ¶ 150. In the event a “rare exception” persists,

RealPage ultimately ensures that the user loses access to its RMS. Id. And RealPage boasts a

ninety-five percent retention rate. See id. Together, this makes it reasonable to infer that if the

Defendant Landlords have maintained access to RealPage’s RMS, as Plaintiffs allege, it is because

they each have either willingly, or through RealPage’s enforcement, adopted the RMS’s rental

prices “the vast majority of the time.” Id. ¶ 151.

In short, the Complaint’s framing of the factual allegations is sufficient to plausibly infer

all Defendant Landlords participated in and joined the conspiracy.

* * *

“Competitors act in concert for purposes of a Section 1 [Sherman Act] claim when their

conduct ‘joins together separate decisionmakers,’ such that their agreement ‘deprives the

14 Price-fixing agreements are unlawful even if they are not “aimed at the complete elimination of price competition.”

Socony-Vacuum, 310 U.S. at 224 n.59. It is therefore unnecessary for Plaintiffs to plead 100 percent compliance with

RealPage’s “recommendations” to sufficiently allege an unlawful price-fixing arrangement. See RealPage MDL, 709

F. Supp. 3d at 504 (rejecting argument that Plaintiffs must plead 100 percent adoption rate with the RealPage RMS-

generated prices).

marketplace of independent centers of decisionmaking.’” Duffy, 758 F. Supp. 3d at 1293 (quoting

Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 195 (2010)). This is exactly what

Plaintiffs’ factual allegations of parallel conduct and plus factors suggest has occurred here. The

Court concludes that they have sufficiently stated the existence of the horizontal element of their

hub-and-spoke conspiracy.

2. Plaintiffs Sufficiently Plead the Existence of a Vertical Agreement

Between RealPage and Each Defendant Landlord.15

Plaintiffs seek to plead the existence of the vertical agreements within their hub-and-spoke

conspiracy between each Defendant Landlord and RealPage through alleged direct evidence. See

Joint Opp. at 33. They argue that the contracts between RealPage and each Defendant Landlord

constitute sufficient direct evidence of agreements to fix prices to supracompetitive levels. See id.

at 33–34. The Joint Defendants counter that these contracts are merely licensing agreements that

alone cannot support a claim of concerted action. They further contend that these agreements do

not represent agreements “in restraint of trade” because they do not require the Defendant

Landlords to accept the “recommended” RMS-generated rental prices. See Joint MTD at 32–33.

But Plaintiffs respond that this ignores their allegations emphasizing the multi-layered

enforcement system RealPage has built to ensure compliance with its RMS “recommendations.”

See Joint Opp. at 34–35. The Court agrees with Plaintiffs.

RealPage’s contracts with the Defendant Landlords are not mere licensing agreements that

provide access to its RMS. Per their plain terms, RealPage and Defendant Landlords agree to

exchange information designed to restrain trade. These agreements obligate the Defendant

Landlords to provide RealPage with their Confidential Data. Id. ¶¶ 19, 21–28, 35, 37, 80. They

15 In this subsection, references to “Defendant Landlords” excludes AvalonBay, who is separately addressed by the

Court. See infra § III.A.4.

also make clear that this Confidential Data will be used, along with other competitors’ Confidential

Data, to power RealPage’s RMS and “deliver value” to the Defendant Landlords. Id. ¶ 37. Thus,

Defendant Landlords understand that Confidential Data is being commingled to generate

supracompetitive rental prices. See id. ¶¶ 37, 80–81, 83–84. Indeed, they pay for this service.

See id. ¶ 36. Simply put, the contracts between RealPage and the Defendant Landlords reveal that

the Defendant Landlords agreed to provide information they would not otherwise share with

competitors to RealPage to coordinate supracompetitive price increases to the benefit of

themselves and their fellow competitors. That represents an anticompetitive agreement. See

RealPage MDL, 709 F. Supp. 3d at 502–03 (holding that contracts between RealPage and landlords

in which landlords agreed to share their “proprietary commercial data” to serve as “an input to

[RealPage’s] RMS” represented direct evidence of a vertical anticompetitive agreement in a larger

hub-and-spoke conspiracy).

These agreements also are in “restraint of trade.” As previously recognized, Plaintiffs have

alleged that RealPage takes various steps to actively ensure these price “recommendations” instead

act as mandates. See supra at 20. This includes RealPage directly communicating with landlords,

including Defendant Landlords, that they should “be compliant” with the RMS-generated prices.

See Compl. ¶¶ 134–36. It includes RealPage “command[ing]” landlords to turn on auto-accept

features, which it states are not an “ask” or an “optional process.” Id. ¶ 140. And, it includes

RealPage creating and employing a multi-faceted system that uses override restrictions,

compliance monitoring, and audits to limit any deviations from the RMS’s generated prices. Id.

¶¶ 137, 143, 145–49, 153, 214.

Plaintiffs’ allegations constitute sufficient direct evidence of an agreement between

RealPage and Defendant Landlords to facilitate the creation of, and ensure RMS users adopt,

supracompetitive rental prices. The Court “need go no further” and concludes that Plaintiffs have

also sufficiently alleged the vertical component of their hub-and-spoke conspiracy. W. Penn

Allegheny, 627 F.3d at 99.

3. AvalonBay’s Contract With RealPage Undermines any Inference that

It Agreed to Fix Prices According to RealPage’s RMS.

Defendant AvalonBay moves to dismiss the antitrust claims asserted against it based on

unique aspects of its contractual arrangement with RealPage. See AvalonBay MTD at 18–24.

AvalonBay obtained a license to use LRO. See Compl. ¶ 20. As part of its agreement with

RealPage for this license, AvalonBay obtained specific Data Restriction Provisions that prevent

the rental prices it receives from the RMS from incorporating other landlords Confidential Data

(the “Data Entry Representation”), or the rental prices other landlords receive from the RMS from

incorporating its Confidential Data (the “Input Representation”). See id.; see also Master Serv.

Agmt., § 4.5. Based on these provisions, AvalonBay argues that it is implausible to infer it engaged

in the exchange of Confidential Data integral to inferring the existence of a preceding agreement

among the other Defendant Landlords. The Court agrees with AvalonBay.

Multiple cases have now assessed whether the use of RMS is sufficient to plead the

existence of a price-fixing conspiracy. Some courts have sustained these claims, whereas others

have denied them. The takeaway between the two camps is clear: to infer a price-fixing conspiracy

among RMS users, plaintiffs must allege that competitors knowingly provide their Confidential

Data to the RMS provider, and that all competitors’ Confidential Data is comingled and used by

the RMS to generate supracompetitive prices for each competitor to charge. Where these key

allegations have been included in the complaint, claims of a price-fixing conspiracy have advanced

to discovery. See Duffy, 758 F. Supp. 3d at 1291–93; RealPage MDL, 709 F. Supp. 3d at 504–

13; Coleman, No. 25-93, ECF No. 129, at 13–14; accord MultiPlan, 789 F. Supp. 3d at 641–42

(holding that although plaintiffs did not sufficiently allege that the RMS algorithm aggregated

competitors’ non-public, competitively sensitive data, plaintiffs sufficiently alleged that the hub

conspirator managing the RMS facilitated the exchange of this data among competitors). Where

they were absent (or stated in a conclusory fashion), these claims were dismissed. See Passenger

Vehicle, 767 F. Supp. 3d at 716; Dai, 2025 WL 2078835, at *5; Cornish-Adebiyi, 2024 WL

4356188, at *5–7; Gibson, 2024 WL 2060260, at *4–5 & n.7.

AvalonBay’s Data Restriction Provisions place it in the latter camp. Specifically, they

prevent AvalonBay from engaging in the requisite “exchange of confidential information” through

RealPage’s RMS that is necessary to coordinate the alleged price-fixing. Gibson, 2024 WL

2060260, at *5. They do not permit other competitors from receiving “recommended” rental prices

that are based on AvalonBay’s non-public, Confidential Data. See Master Serv. Agmt. § 4.5 (Input

Representation). And they do not permit AvalonBay from similarly receiving its own

“recommended” rental prices based on other competitors’ Confidential Data. See id. (Data Entry

Representation).

Plaintiffs nonetheless argue that AvalonBay is circumventing this “nominal[]” restriction

by engaging in the exchange of Confidential Data directly with other Defendant Landlords.

Compl. ¶ 20. Plaintiffs allege that AvalonBay participated in (and, in certain circumstances, led)

regularly scheduled LRO User Group meetings in which they exchanged “non-public,

competitively sensitive information . . . including weekly traffic, occupancy rates, starting prices

for floorplans, percentage of apartments leased, total appointments, and any applicable

concessions/specials.” Id. ¶¶ 90, 93, 96–98. They also allegedly helped devise and propose

algorithmic amendments to RealPage to ensure LRO did not propose rental price reductions based

on certain market circumstances (like the COVID-19 pandemic). See id. ¶¶ 99–104.

In response, Plaintiffs emphasize that LRO offered an option to users allowing them to

manually input Confidential Data collected from competitors into LRO to be used in LRO’s

pricing algorithm, and suggest it is reasonable to infer that AvalonBay utilized this option to

circumvent the Data Restriction Provisions. See ECF No. 143 (“AvalonBay Opp.”) at 11, 21–22

(citing Compl. ¶¶ 79, 117–18). But Plaintiffs do not actually allege that AvalonBay did this; they

only plead AvalonBay had the opportunity to do this. In other words, Plaintiffs “dance around”

the allegation that AvalonBay used LRO’s manual input to circumvent their Data Restriction

Provisions “with linguistic equivocation in an obvious attempt to imply it, but [they] never

unambiguously allege[] as much.” Cornish-Adebiyi, 2024 WL 4356188, at *5. That is insufficient

to state a claim. And to the extent they clearly make this allegation in their opposition brief, “it is

‘axiomatic’ that a plaintiff cannot amend its complaint by way of a brief in opposition to a motion

to dismiss.” D&D Tech., Inc. v. CytoCore, Inc., No. 14-4217, 2014 WL 4367314, at *3 (D.N.J.

Sept. 14, 2014) (quoting Commw. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181

(3d Cir. 1998)).

Even if Plaintiffs did go so far as to unequivocally allege that AvalonBay engaged in this

work-around of the Data Restriction Provisions, one key allegation remains entirely absent.

Pursuant to the Data Entry Provision, RealPage was restricted from allowing its algorithm to

generate any rental prices for AvalonBay based on anything other than AvalonBay’s own

Confidential Data or publicly-available data, unless AvalonBay provided “express written

consent” for the algorithm to incorporate other data. See Master Serv. Agmt., §4.5. Plaintiffs do

not allege that AvalonBay and RealPage entered any agreement in writing (or otherwise)

effectively amending the Data Entry Representation.16

Without any of these key allegations, Plaintiffs’ Complaint only suggests AvalonBay

agreed to an information exchange with certain Defendant Landlords, but not an “information

exchange [that] was part of an agreement to fix prices” through RealPage’s RMS. In re Granulated

Sugar Antitrust Litig., No. 24-3110, 2025 WL 3012238, at *9 (D. Minn. Oct. 15, 2025) (emphasis

added). To state a plausible claim that AvalonBay participated in the hub-and-spoke conspiracy,

Plaintiffs’ Complaint must take this next step. Because it does not do so, Plaintiffs’ antitrust claims

against AvalonBay are dismissed.

* * * * *

Taken collectively, Plaintiffs’ factual allegations support a “reasonable expectation that

discovery will reveal evidence of [an] illegal” hub-and-spoke agreement between RealPage and

the Defendant Landlords (excluding AvalonBay) to fix rental prices to supracompetitive rates.

Twombly, 550 U.S. at 556. Simply put, “genuine competitors do not make daily, weekly, and

monthly reports of the minutest details of their business to their rivals . . . and obtain from [a jointly

employed expert] a ‘harmonized’ estimate of the market.” Am. Column & Lumber Co. v. United

16 The allegations here are distinguishable from District of Columbia v. RealPage, Inc., No. 2023-CAB-6762 (D.C.

Super. Ct.). There, the court sustained claims against AvalonBay where the plaintiffs asserted AvalonBay participated

in a specific conspiracy to fix rental prices in response to the COVID-19 pandemic. See AvalonBay MTD, Ex. 5,

Order at 17–18 (Apr. 7, 2025). Here, Plaintiffs do not similarly allege an independent price-fixing conspiracy

involving AvalonBay related to rental rates during the pandemic. Instead, they allege a single hub-and-spoke price-

fixing conspiracy centered on all Defendant Landlords exchange of Confidential Data through RealPage’s RMS, and

point to AvalonBay’s information exchange with other Defendant Landlords during the COVID-19 pandemic as a

“striking example” supporting an inference of conspiracy. AvalonBay Opp. at 10; see also Compl. ¶¶ 99–104. But

the Data Restriction Provisions make it implausible to infer (without allegations clearly stating AvalonBay subverted

these provisions) that AvalonBay engaged in the specific information exchange necessary to participate in this broader

conspiracy.

States, 257 U.S. 377, 410 (1921). Allegations of such a conspiracy, like those alleged here, state

a plausible claim under Section 1 of the Sherman Act.

B. Plaintiffs’ State Antitrust Claim

Like its federal counterpart, the NJAA makes “[e]very contract, combination . . ., or

conspiracy in restraint of trade” illegal. N.J.S.A. § 56:9-3. The NJAA also instructs that it must

“be construed in harmony with ruling judicial interpretations of comparable Federal antitrust

statutes.” Id. § 56:9-18; see also Marin v. Landgraf, No. 11-690, 2013 WL 356623 (D.N.J. Jan.

29, 2013) (explaining that “[u]niform construction of the federal and [New Jersey] state antitrust

laws is ‘mandatory, not [] permissive’” (quoting Sickles v. Cabot Corp., 877 A.2d 267, 275 (N.J.

Super. Ct. App. Div. 2005)).

Defendants argue that Plaintiffs’ NJAA claim must be dismissed on the same basis as their

federal Sherman Act claim. But the Court has sustained the latter claim. To ensure that the federal

and state antitrust laws are interpreted harmoniously, it will therefore deny Defendants’ motion to

dismiss Plaintiffs’ NJAA claim as well. See CSR Ltd. v. Fed. Ins. Co., 40 F. Supp. 2d 559, 566

(D.N.J. 1998) (denying motion to dismiss plaintiffs’ NJAA claim where court had denied motion

to dismiss plaintiffs’ Sherman Act claim).

C. Plaintiffs’ NJCFA Claims

Plaintiffs bring two additional causes of action under the NJCFA. The first asserts that

Defendants have violated the NJCFA because they have violated federal and state antitrust law.

See Compl. ¶¶ 242–45. The second asserts that Defendants have committed specific “unlawful

practices” in violation of the NJCFA. See id. ¶¶ 246–61. Defendants have moved to dismiss all

NJCFA claims. The Court considers each in turn.

1. Defendants’ Alleged Antitrust Misconduct Does Not Alone State a

Claim Under the NJCFA.

Plaintiffs’ first cause of action under the NJCFA is based entirely on their allegations that

Defendants have engaged in certain forms of anticompetitive conduct. Defendants argue that this

claim must be dismissed because New Jersey courts do not permit plaintiffs to recycle allegations

of antitrust misconduct as violations of the NJCFA. See Joint MTD at 35; AvalonBay MTD at

34–35. Plaintiffs counter that recent amendments to the NJCFA abrogate this caselaw and permit

NJCFA claims to proceed based on alleged antitrust violations. See Joint Opp. at 37–38. Upon

close scrutiny of the recent amendments to the NJCFA, the Court ultimately agrees with the

Defendants.

The NJCFA makes it illegal to engage in any “unlawful practice,” as defined by state law,

“in connection with the sale or advertisement of any merchandise or real estate.” N.J.S.A. § 56:8-

2. This extends to “landlords as ‘sellers’” and covers “the rental of real estate.” 49 Prospect St.

Tenants Ass’n v. Sheva Gardens, Inc., 547 A.2d 1134, 1141–42 (N.J. Super. Ct. App. Div. 1988).

But New Jersey courts have held that claims based “sole[ly]” on alleged anticompetitive conduct,

such as price-fixing, do not fall within this ambit. Sickles, 877 A.2d at 276–77. The NJCFA “was

enacted to help eradicate consumer fraud, not to advance public policy in favor of competition and

prevent practices which deprive consumers of the benefit of competitive markets.” Id. at 277.

Based on this statutory purpose, factual allegations supporting an NJCFA claim must indicate or

show that the defendant’s conduct had the “capacity to mislead” consumers through the use of

“deception, fraud or misrepresentation, or by conceal[ing] material facts.” Id. at 276–77.

Allegations of anticompetitive conduct alone fail to make such a showing. See id. at 277.

Plaintiffs contend that this caselaw is inapposite because of recent amendments to the

NJCFA that extended the scope of an “unlawful practice” to “any commercial practice that violates

State or federal law.” Id. § 56:8-4(b). According to Plaintiffs, Defendants’ anticompetitive

conduct—specifically, their (1) exchange of Confidential Data, and (2) agreement to fix rent prices

based on RealPage’s RMS—represent “commercial practices” that violate “State and federal”

antitrust laws. Compl. ¶¶ 244–45. But Plaintiffs do not provide any authority for what constitutes

a “commercial practice” under the amendments to the NJCFA. The statute does not define the

term. See generally N.J.S.A. § 56:8-1, et seq. And the New Jersey Supreme Court has not done

so either. This Court, therefore, endeavors to “predict how [the New Jersey Supreme Court] would

rule if faced with the issue.” Lomando v. United States, 667 F.3d 363, 385 (3d Cir. 2023)

(quotation marks omitted).17

New Jersey courts approach statutory interpretation by beginning with a law’s plain

language, which is analyzed according to its “ordinary meaning” and “in the context of related

provisions so as to give sense to the legislation as a whole.” DeSimone v. Springpoint Senior

Living, Inc., 306 A.3d 1276, 1282 (N.J. 2024) (quotation marks omitted). The goal is to interpret

this language in a way that “determine[s] and effectuate[s] the Legislature’s intent.” Id. (quotation

marks omitted). If the language is unclear or ambiguous, courts will consult “extrinsic evidence,

including legislative history, committee reports, and contemporaneous construction.” Id.

(quotation marks omitted).

17 The New Jersey Supreme Court has defined an “unconscionable commercial practice” within the context of § 56:8-

2. But the definition is clearly influenced by the adjective “unconscionable” that modifies the term “commercial

practice” in that provision. See, e.g., Cox v. Sears Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994) (defining the term

as including any act lacking “good faith, honesty in fact, and observance of fair dealing” (quotation marks omitted)).

The newly amended § 56:8-4, by contrast, only refers to a “commercial practice.” The legislature’s decision to more

broadly refer to a “commercial practice” in this provision implies that it intended for the term to have some broader

meaning than the meaning ascribed to an “unconscionable” commercial practice in § 56:8-2. See, e.g., In re S.O., 341

A.3d 1229, 1241 (N.J. Super. Ct. App. Div. 2025) (explaining that New Jersey courts “view the Legislature’s choice

of words and phrases as deliberate”). The Court therefore proceeds to define what constitutes a “commercial practice”

under the NJCFA.

The purpose behind the NJCFA has been consistently understood for decades: to protect

consumers from being directly deceived or defrauded by businesses in commercial transactions.

See, e.g., id. at 1282 (“The [New Jersey] Legislature enacted the [NJ]CFA in 1960 to combat sharp

practices and dealing that victimized consumers by luring them into purchase[s] through fraudulent

or deceptive means” (internal citation and quotation marks omitted).); Cox, 647 A.2d 454

(explaining that the NJCFA was intended “to combat the increasingly widespread practice of

defrauding the consumer” (quotation marks omitted)). To enforce this purpose, courts interpret

the provisions of the NJCFA broadly. See Lemelledo v. Beneficial Mgmt. Corp., 696 A.2d 546,

551 (N.J. 1997). However, “notwithstanding a broad and liberal reading of the statute, the

[NJ]CFA does not cover every sale in the marketplace.” Papergraphics Int’l, Inc. v. Correa, 910

A.2d 625, 628 (N.J. Super. Ct. App. Div. 2006). Instead, its “applicability hinges on the nature of

a transaction, requiring case by case analysis.” Id. Based on this admonition, courts have

concluded that its protections do not extend to non-consumer transactions, i.e., transaction that do

not directly involve “consumers” or “consumer goods.” Id. at 628–29 (collecting cases).

The term “commercial practice” must be understood in this context. At a minimum, this

means the act being asserted as a “commercial practice” must involve some type of interaction

between a vendor and a consumer. Longstanding New Jersey Supreme Court precedent supports

this conclusion. See, e.g., Kugler v. Romain, 279 A.2d 640, 651–52 (N.J. 1971) (holding that the

NJCFA’s prohibition on “unconscionable commercial practices” is intended to “balance the

interests of the consumer public” with those of the “marketers of consumer goods”). And the

“practice” must involve some type of deception, fraud, or misleading conduct on the part of the

vendor directed at the consumer. See Lemelledo, 696 A.2d at 552 (explaining that the [NJ]CFA

is intended to bar “sharp practices and dealings in the marketing of merchandise and real estate

whereby the consumer could be victimized by being lured into a purchase[s] through fraudulent,

deceptive[,] or other similar kind[s] of selling or advertising practices” (quotation marks omitted)).

Although the recent amendments to the NJCFA expand the definition of an “unlawful practice” to

any “commercial practice that violates State or federal law,” they do nothing to alter the purpose

of the statute or the scope of what must constitute a “commercial practice” prohibited under it.

Accordingly, the “commercial practice[s]” that are barred by other State or federal laws must be

of the same character as those prohibited under the NJCFA.18

Based on this interpretation, the Court concludes the scope of “commercial practice” under

§ 56:8-4(b) does not extend to purely anticompetitive conduct and that Sickles remains good law.

Simply put, the anticompetitive conduct asserted by Plaintiffs as “commercial practice[s]” did not

involve any interaction between the Defendants and any consumers; it only involved interaction

between the Defendants. See Sickles, 877 A.2d at 277 (holding that conspiring with competitors

to fix prices is insufficient to constitute a violation of the NJCFA where the conspirators

anticompetitive conduct does not involve “communication or contact of any kind” with the

allegedly harmed consumers). And, as Sickles held, this purely anticompetitive conduct lacks a

“capacity to mislead” and is not “inherently misleading” to consumers. Id. Plaintiffs’ NJCFA

claims based solely on the specifically asserted anticompetitive conduct are therefore dismissed.

See Fed. Trade Comm’n v. Amazon.com, Inc., No. 23-1495, 2025 WL 871715, at *3 (W.D. Wash.

18 Legislative history buttresses this conclusion. New Jersey courts view “[a] legislative committee’s statement of the

purpose of a proposed bill, including the nature and effect of the measure,” as “a highly persuasive indication of

legislative intent.” Lucca v. Wells Fargo Bank, N.A., 117 A.3d 1267, 1271 (N.J. Super. Ct. App. Div. 2015). The

initial “Statement” of purpose provided with the law that added § 56:8-4(b) to the NJCFA states that this provision

was added “to ensure that the division can take action based on violations of relevant consumer protection statutes

such as the ‘Fair Debt Collection Practices Act’ (15 U.S.C. § 1692, et seq.) and other similar federal laws designed to

prevent overreaching or abuse of consumers.” See Statement, Bill No. A1556, Sponsorship Update (Feb. 7, 2022).

Mar. 20, 2025) (rejecting argument that 2022 amendments to the NJCFA abrogated Sickles and

dismissing NJCFA claims based only on alleged antitrust violations).19

2. Certain of Defendants Landlords’ Alleged Conduct Constitutes Specific

Violations of the NJCFA.

Plaintiffs second cause of action under the NJCFA asserts that the Defendants have

engaged in specific unconscionable commercial practices, misrepresentations, and knowing

omissions that violate the statute. Defendants argue that Plaintiffs have failed to plausibly plead

unconscionability. They also contend that Plaintiffs’ misrepresentation and omissions claims must

meet Rule 9’s heightened pleading requirements but fail to do so. See Joint MTD at 36–43; K&C

MTD at 22–23; Russo MTD at 22–25; AvalonBay MTD at 34–35. Plaintiffs counter that they

have satisfied the pleading standards applicable to each of the acts they assert as violations of the

NJCFA. See, e.g., Joint Opp. at 38–45. The Court finds that Plaintiffs’ have sufficiently pleaded

that certain acts by the Defendant Landlords constituted unconscionable commercial practices, but

have only sufficiently pleaded that certain Defendant Landlords engaged in misrepresentations or

knowing omissions in violation of the NJCFA.

In an action initiated by the Attorney General, to state a claim under the NJCFA the

complaint only needs to state that the defendants engaged in an “unlawful practice.” See Lee v.

19 New Jersey courts also adhere to “a long-standing canon of statutory interpretation that presumes that the Legislature

is knowledgeable regarding the judicial interpretation of its enactments.” Coyle v. Bd. of Chosen Freeholders of

Warren Cnty., 787 A.2d 881, 886 (N.J. 2002). They also do not assume the legislature intends to “alter an established

judicial interpretation absent a ‘clear manifestation’ of such intent.” Id. at 886 (quoting State v. Dalglish, 432 A.2d

74, 79 (1981)). In the context of the NJCFA, courts recognize that when the legislature broadens the definition of

“unlawful practice,” it does so “by adding sections to address particular areas of concern.” DeSimone, 306 A.3d at

1282 (quotation marks omitted) (emphasis in original). These laws make it explicitly clear that the “commercial

practice” at issue is now an “unlawful practice” under the NJCFA. See, e.g., N.J.S.A. § 56:12-70 (Consumer

Protection Leasing Act of 1994) (“It is an unlawful practice and a violation of [the NJCFA] to violate any provision

of this act.”); id. § 56:12-96(a) (Service Contract Act of 2013) (same); id. § 56:13-21 (Predatory Towing Prevention

Act of 2007) (same). Considering this precedent, the generic reference to “any commercial practice” in § 56:8-4(b)

is not a sufficiently explicit “manifestation” of the legislature’s intent to abrogate Sickles or make any violation of the

NJAA an “unlawful practice.”

Carter-Reed Co., LLC, 4 A.3d 561, 576 & n.10 (N.J. 2010). Pursuant to § 56:8-2, unlawful

practices include engaging in any of the following actions “in connection with the sale or

advertisement of any merchandise or real estate”: (1) any commercial practice that is

unconscionable; (2) any misrepresentation; or (3) any knowing omission of material fact. N.J.S.A.

§ 56:8-2. Unconscionable commercial practices only need to be pleaded in accordance with Rule

8; misrepresentations and knowing omissions sound in fraud and must be pleaded in accordance

with Rule 9. See Browne v. Nat’l Collegiate Student Loan Trust, No. 22-2713, 2024 WL 2194265,

at *4 n.8 (D.N.J. Apr. 30, 2024).

Plaintiffs’ Complaint reads as follows. First, Plaintiffs allege that RealPage engaged in the

following unconscionable commercial practices: (1) training landlords to mislead or conceal how

rental rates were set, and (2) pushing inflated rental rates directly to Internet Listing Services that

advertise landlords’ units to renters. See Compl. ¶¶ 205, 207–10, 255(b), 255(c). They further

claim all Defendant Landlords engaged unconscionable commercial practices by following

RealPage’s instructions and using daily price changes and exploding offers to “create a false sense

of urgency” and pressure consumers to accept inflated rental rates. See id. ¶¶ 205, 256(b).20

Plaintiffs separately allege that all Defendants misrepresented or knowingly omitted material

information regarding how they determined their rental rates. See id. ¶¶ 206, 211, 213, 220, 259.

They specifically claim Bozzuto, Greystar, and LeFrak represented that they charged “market

rates” when they were, in fact, charging an inflated rate based on the asserted price-fixing scheme.

See id. ¶¶ 206, 218, 221, 223, 259. And they allege the Defendant Landlords concealed their use

of RealPage’s RMS from renters (at RealPage’s instruction). See id. ¶¶ 206, 216–217, 225. The

20 Plaintiffs also again assert that Defendants’ anticompetitive actions constitute unconscionable commercial practices.

See Compl. ¶¶ 255(a), 255(d), 256(a). But because Plaintiffs cannot recycle antitrust violations to assert NJCFA

violations, this conduct cannot be construed as an unconscionable commercial practice. See Sickles, 877 A.2d at 277.

Court addresses each set of allegations in turn—focusing first on RealPage, and then on the

Defendant Landlords.21

a. Plaintiffs Fail to Allege RealPage Violated the NJCFA.

Plaintiffs allege RealPage engaged in unconscionable commercial practices and omissions

under the NJCFA by instructing or training landlords to use tactics designed to create a false sense

of urgency around rental pricing rates and to misrepresent or conceal their use of RealPage’s RMS

in pricing. See Compl. ¶¶ 205, 207–10, 255(b). They also claim that RealPage itself pushed

inflated rental prices generated by its RMS to landlords’ Internet Listing Services where they were

advertised directly to consumers. See id. ¶¶ 255(c). The Court concludes that these allegations

are inactionable or insufficiently pleaded.

Plaintiffs first set of allegations about RealPage’s interactions with landlords, including the

Defendant Landlords, is missing a critical element to be actionable under the NJCFA: direct

interaction between a vendor and a consumer. See supra at 34–35. Without this interface, the

transaction at issue cannot be considered a “consumer transaction” regulated by the NJCFA.

Papergraphics, 910 A.2d at 628–29. Here, RealPage’s interactions with the Defendant Landlords

do not directly involve consumers, and may only have a tangential or incidental effect on the

downstream “consumer transaction” between the Defendant Landlords (the vendor) and the

prospective renters (the consumers). Courts have held that parties similarly once-removed from

consumer transactions cannot be held liable under the NJCFA. See Papergraphics, 910 A.2d at

21 Plaintiffs’ Complaint does not neatly delineate their allegations as the Court has, and instead offers allegations that

certain of Defendants’ alleged misrepresentations or omissions constitute unconscionable commercial practices as

well. See, e.g., Compl. ¶¶ 214–15, 255(b), 257–58. But because these are distinct “unlawful practices” under § 56:8-

2 and are subject to different pleading thresholds, the Court must analyze these acts separately. See In re Insulin

Pricing Litig., No. 17-699, 2019 WL 643709, at *15 (D.N.J. Feb. 15, 2019) (recognizing that the list of “unlawful

practices” included in § 56:8-2 are “defined separately and differently in the text of the statutes and in relevant case

law interpreting them”). It has therefore delineated Plaintiffs’ claims as specified.

629 (collecting cases holding that wholesalers that sell goods to vendors for resale are not engaged

in consumer transactions under the NJCFA). Plaintiffs NJCFA claims against RealPage related

only to its direct interactions with the Defendant Landlords are therefore not actions taken pursuant

to a “consumer transaction” and are not actionable under the NJCFA.

Plaintiffs second set of allegations do allege a form of direct interaction between RealPage

and consumers. Specifically, they claim that by requiring landlords, including the Defendant

Landlords, to use the RMS’s auto-accept features, RealPage is directly advertising

supracompetitive rental prices to consumers, which they claim constitutes an unconscionable

commercial practice. See Compl. ¶¶ 139–40, 255(c). But the Complaint does not allege that

RealPage makes any other statements about these prices to consumers (e.g., that they are

“competitive” or “market rate,” see infra at 43–44). Without such allegations, there is no indication

that these price listings have the “capacity to mislead” prospective renters. See Sickles, 877 A.2d

at 276. Absent this essential “ingredient,” Plaintiffs fail to state a claim under the NJCFA. Id.

Accordingly, Plaintiffs NJCFA claims asserted against RealPage are dismissed.

b. Plaintiffs Sufficiently Allege Defendant Landlords Committed

Certain Unconscionable Commercial Practices.

To plead an unconscionable commercial practice, plaintiffs must state that an act: (1) lacks

“good faith, honesty in fact, and observance of fair dealing,” and (2) has “the capacity to mislead.”

Sickles, 877 A.2d at 276 (quoting Cox, 647 A.2d at 462). They are not required to plead an “intent

to defraud.” Katz v. Live Nation, Inc., No. 09-3740, 2010 WL 2539686, at *5 (D.N.J. June 17,

2010). Because unconscionability is “an amorphous concept [] designed to establish a broad

business ethic,” Kugler, 279 A.2d at 651, courts liberally assess whether a commercial practice is

unconscionable on a case-by-case basis, Gonzalez v. Wilshire Credit Corp., 988 A.2d 567, 573

(N.J. Super. Ct. App. Div. 2010).

Here, Plaintiffs allege that there is a “substantial power imbalance” in housing negotiations

between landlords and renters in New Jersey because: (1) housing is essential, making demand

inelastic, and (2) the market for housing is supply-constrained. Compl. ¶¶ 156, 158, 202.

Defendant Landlords are aware of this imbalance and have sought to take advantage of it by

pursuing a pricing strategy that “create[s] a false sense of urgency” designed to pressure renters to

accept inflated rental prices. Id. ¶¶ 204–05. Specifically, they have departed from traditional

market pricing practices and now change prices for units daily (using RealPage’s RMS), as well

as employ exploding offers. See id. ¶ 205. The Court is satisfied, under the broad construction it

must afford to the term unconscionable commercial practices, that this states a plausible claim that

the Defendant Landlords have engaged in an “unlawful practice” under the NJCFA.

Defendants argue that these tactics amount to nothing more than a differential pricing

strategy that courts have found is not unlawful under the NJCFA. See Joint MTD at 42–43 (citing,

e.g., Silver v. Pep Boys-Manny, Moe & Jack of Delaware, Inc., No. 17-18, 2018 WL 1535285, at

*5–6 (D.N.J. Mar. 29, 2018). Although Plaintiffs are correct that the NJCFA does not require

landlords to charge “the same prices for the same product,” even if sold through “the same

distribution channel, at the same time,” Silver, 2018 WL 1535285, at *6, Plaintiffs allegations do

not simply claim that renters have been subject to disparate, high prices for similar rental units.

Instead, Plaintiffs assert that the Defendant Landlords know that they have a superior bargaining

position that they can exploit. And they claim Defendants have done so by shifting away from the

traditional market pricing model in favor of strategy with the “capacity to mislead,” Sickles, 877

A.2d at 276—specifically, one designed to create a false “sense of urgency” in the market so

renters accept supracompetitive prices, Compl. ¶ 205.22 That does not represent “honest in fact”

dealing. Sickles, 877 A.2d at 276. In fact, it is the quintessential set of circumstances the

unconscionable commercial practices prohibition is intended to prevent. See Kugler, 279 A.2d at

651–52 (explaining that this provision is intended to ensure that consumer transactions “result[]

from real bargaining between parties who had freedom of choice and understanding and [an] ability

to negotiate in a meaningful fashion”).23

Plaintiffs have provided sufficient factual allegations to plausibly infer that the Defendant

Landlords intentionally used unconscionable commercial practices, specifically in the form of

daily pricing changes and exploding offers, to mislead consumers about the state of the rental

market and accept inflated prices. Defendants’ motions to dismiss Plaintiffs’ NJCFA claim based

on unconscionable commercial practices are therefore denied.

c. Defendant Landlords’ Misrepresentations and Omissions.

Claims for misrepresentations and knowing omissions under the NJCFA each sound in

fraud and must satisfy the heightened pleading requirements of Rule 9(b). See Frederico v. Home

Depot, 507 F.3d 188, 200, 202–03 (3d Cir. 2007); see also Coba v. Ford Motor Co., No. 12-1622,

2013 WL 244687, at *8–9 & n.9 (D.N.J. 2013) (holding NJCFA claims based on affirmative

misrepresentations must satisfy Rule 9’s pleading requirements). This requires alleging “the date,

22 Although these allegations rest, in part, on anticompetitive conduct, Sickles’ holding was limited to (and only barred)

attempts to assert an NJCFA violation based “sole[ly]” on anticompetitive conduct. Sickles, 877 A.2d at 276–77.

Anticompetitive conduct, coupled with other commercially deceptive, misleading, or fraudulent behavior, can state a

claim under the NJCFA.

23 Defendant Landlords protest that Plaintiffs’ allegations are too conclusory because they do not allege that each

individual Defendant Landlord engaged in an unconscionable commercial practice. But this claim is only subject to

Rule 8’s pleading requirement. The Complaint asserts that all Defendant Landlords embraced these pricing tactics.

See Compl. ¶ 205. At this stage, the Court accepts this allegation as true and finds that it states that all Defendant

Landlords “have committed multiple similar acts of wrongdoing,” and “permit[s] an inference that each Defendant

should equally be liable” for their role in this pricing scheme. Zanfardino, 2023 WL 8232896, at *4.

time[,] and place of the alleged fraud or otherwise inject[ing] precision of some measure of

substantiation into [the] fraud allegation.” Frederico, 507 F.3d at 200; see also In re Supreme

Specialties, Inc. Sec. Litig., 438 F.3d 256, 276–77 (3d Cir. 2006) (explaining that Rule 9 requires

pleading the “who, what, where, when[,] and how of the events at issue” (quotation marks

omitted)). If the claims apply to multiple defendants, it also requires specifying “the allegations

of fraud applying to each defendant.” MDNet, Inc. v. Pharmacia Corp., 147 F. App’x 239, 245

(3d Cir. 2005) (emphasis added).

Misrepresentations and omissions represent opposite sides of the same coin. Both involve

material facts. A claim for misrepresentation focuses on what was affirmatively said about those

facts. It requires showing that a defendant made a false or misleading statement about a fact

material to the transaction with the intent that it would induce the consumer to complete the

transaction. See Suarez v. Eastern Int’l College, 50 A.3d 75, 87 (N.J. Super. Ct. App. Div. 2012).

A claim for omission, by contrast, focuses on what was not said about those facts. It requires

showing that a defendant knowingly concealed a material fact with the intent that the consumer

rely upon the concealment. See Judge v. Blackfin Yacht Corp., 815 A.2d 537, 541 (N.J. Super.

Ct. App. Div. 2003). As a threshold matter, an omission claim also requires showing an

“underlying duty on the part of the defendant to disclose what he concealed to induce the

purchase.” Mickens v. Ford Motor Co., 900 F. Supp. 2d 427, 441 (D.N.J. 2012). A fact is material

under either claim if it “involves information that is important to consumers” and is “likely to

affect their choice of, or conduct regarding,” a transaction. Argabright v. Rheem Mfg. Co., 201 F.

Supp. 3d 578, 608 (D.N.J. 2016).

Here, the Court concludes that Plaintiffs have only pleaded misrepresentation claims with

the required specificity against Defendants Bozzuto and LeFrak. Plaintiffs specify that these

specific Defendant Landlords represented to prospective renters that they price their units at the

“market rate” or “at a competitive price point.” See Compl. ¶¶ 218, 221, 223. But, these Defendant

Landlords know that this representation is false because they price their units at inflated rates based

on an anticompetitive price-fixing conspiracy that is powered by RealPage’s RMS. See id. ¶¶ 217–

18, 223. Plaintiffs also allege that this information, which is directly related to the price of their

rental units vis-à-vis competitors, is material to their decision to agree to rent these units at the

price offered. See id. ¶ 211; see also Leon v. Rite Aid Corp., 774 A.2d 674, 679 (N.J. Super. Ct.

App. Div. 2001) (holding that allegations that a vendor offered the “lowest and best” price, but

instead used a pricing system that charged “a set of prices that was increased for certain

customers,” constituted a misrepresentation about a material fact). This specific misrepresentation

created the impression that the prospective renters could not find a better price on the market. Had

they known the truth regarding how Bozzuto and LeFrak priced their rental units, these renters

would likely have rejected the price offered and re-negotiated for, or sought a unit on the market

with, a lower price. See Compl. ¶ 211. In fact, Plaintiffs claim this occurred with certain renters

when they discovered that certain Defendant Landlords were pricing their units based on

RealPage’s RMS. See id. ¶ 212.

However, Plaintiffs do not provide any other allegations—general or specific—claiming

any other Defendant Landlords made these types of representations about their pricing to

prospective renters. See id. ¶ 220 (only alleging that certain “landlords’ employees” may make

misrepresentations about units being priced at the “market rate”). Misrepresentation claims,

however, must be pleaded as “to each defendant.” MDNet, 147 F. App’x at 245. Accordingly,

there is no misrepresentation specifically alleged against each of the other Defendant Landlords.24

Plaintiffs have also only pleaded omission claims against Bozzuto and LeFrak. New Jersey

courts do “not imply a duty to disclose, unless such disclosure is necessary to make a previous

statement true or the parties share a ‘special relationship.’” Lightning Lube, Inc. v. Witco Corp.,

4 F.3d 1153, 1185 (3d Cir. 1993). The Complaint alleges that Defendants Bozzuto and LeFrak

represented to renters that their prices reflected market rate, and that this was a knowingly false

statement about a material fact because Defendants knew they were charging inflated prices based

on a price-fixing conspiracy. See Compl. ¶¶ 211–12, 217–18, 221, 223; Leon, 774 A.2d at 679.

This affirmative misstatement created a duty to disclose that these Defendants units were actually

priced at inflated rates using RealPage’s RMS and not according to traditional market conditions

at market rates. See Lightning Lube, 4. F.3d at 1185.

Plaintiffs do not, however, allege that the remaining Defendant Landlords specifically

misrepresented that their prices reflected market rates. They were thus under no duty to correct a

“previous statement” and make it “true.” Lightning Lube, 4 F.3d at 1185. Plaintiffs can therefore

only plead a successful omission claim against these Defendants if each had an independent duty

to reveal how they determined the prices they charged for their rental units. But the Complaint

fails to state that such a duty exists.

Under New Jersey law, a party generally “has no duty to disclose information to another

party in a business transaction unless a fiduciary duty exists between them, unless the transaction

itself is fiduciary in nature, or unless one party expressly reposes a trust and confidence in the

24 Plaintiffs otherwise only specifically assert that Greystar and Veris misrepresented their prices to the market. But

the specific statements that Plaintiffs cite do not refer to how either Defendant actually priced its rental units. See

Compl. ¶¶ 219, 224.

other.” N.J. Econ. Dev. Auth. v. Pavonia Rest., Inc., 725 A.2d 1133, 1139 (N.J. Super. Ct. App.

Div. 1998); see also World Finer Foods, Inc. v. Archway Cookies, LLC, No. 03-1277, 2005 WL

8175075, at *4 (D.N.J. Mar. 9, 2005) (explaining that independent “fiduciary duties generally are

not imposed in ordinary commercial business transactions”).

Plaintiffs point to no authority suggesting that a transaction between a seller and a

prospective buyer for a negotiable commodity creates fiduciary obligations; indeed, these arms-

length transactions are typically understood as involving adverse parties vying for their own self-

interests. See, e.g., United States v. Lavin, 942 F.2d 177, 188 n.14 (1991) (defining an arms-length

business transaction as “a transaction negotiated by unrelated parties, each acting in his or her own

self-interest” (quotation marks omitted)). Thus, a fiduciary relationship creating a duty of

disclosure could only arise if there was a “repose[]” of trust between the parties, Pavonia, 725 A.2d

at 1139—i.e., if prospective renters indicate that they were trusting some aspect of the Defendant

Landlords’ price representations or if the Defendant Landlords made statements encouraging

renters to trust their price representations, see Stevenson v. Mazda Motor of Am., Inc., No. 14-

5250, 2015 WL 3487756, at *9 (D.N.J. June 2, 2015). The Complaint, however, is devoid of

factual allegations to this effect. Thus, the remaining Defendant Landlords were under no

independent duty to disclose their use of RealPage’s RMS to determine their rental prices.

Plaintiffs, in turn, fail to state a knowing omission claim as to the remaining Defendant Landlords

under the NJCFA.

* * * * *

In short, the Court concludes that Plaintiffs have sufficiently alleged that all Defendant

Landlords committed unconscionable commercial practices under the NJCFA. Additionally,

Plaintiffs have stated a claim for relief against Bozzuto and LeFrak for misrepresentations and

knowing omissions under this statute.

IV. CONCLUSION

For the foregoing reasons, the Joint Defendants’ motion to dismiss, ECF No. 115; AION’s

motion to dismiss, ECF No. 116; Cammeby’s and Kamson’s motion to dismiss, ECF No. 117;

Russo’s motion to dismiss, ECF No. 118; and AvalonBay’s motion to dismiss, ECF No. 120, are

each GRANTED in part and DENIED in part.

Plaintiffs sufficiently allege federal and state antitrust claims under the Sherman Act and

NJAA against all Defendants except AvalonBay. The Joint Defendants’, AION’s, Cammeby’s,

Kamson’s, and Russo’s motions are DENIED as to these claims. AvalonBay’s motion is

GRANTED as to these claims, and the Sherman Act and NJAA claims asserted against

AvalonBay under Counts I and II are DISMISSED.

Plaintiffs cannot allege a violation of the NJCFA based solely on Defendants’ alleged

anticompetitive misconduct or violation of federal or state antitrust law. Defendants’ motions to

dismiss as to Count III are GRANTED, and Count III is DISMISSED.

Plaintiffs fail to allege specific claims under the NJFCA against RealPage. RealPage’s

motion to dismiss the claims brought against it under Count IV is GRANTED, and those claims

are DISMISSED.

Plaintiffs sufficiently allege specific unconscionable commercial practices in violation of

the NJCFA under Count IV against all Defendant Landlords. All motions seeking the dismissal

of these claims are DENIED.

Plaintiffs only sufficiently allege specific misrepresentations and knowing omissions in

violation of the NJCFA under Count IV against Defendants Bozzuto and LeFrak. All motions

seeking dismissal of these claims as to these two Defendants are DENIED. Plaintiffs otherwise

fail to state a claim for misrepresentations or knowing omissions against the remaining Defendant

Landlords. The motions to dismiss these claims brought by Defendants Morgan, Kamson,

Greystar, AION, Cammeby’s, Veris, Russo, and AvalonBay are GRANTED, and these claims are

DISMISSED.

As this is Plaintiffs’ first Complaint, all claims are dismissed WITHOUT PREJUDICE.

An appropriate Order will follow the entry of this Opinion.

Date: 03.31.2026 s/ Madeline Cox Arleo

MADELINE COX ARLEO

UNITED STATES DISTRICT JUDGE