In his final order approving the National Association of REALTORS’® (NAR) settlement agreement, Judge Stephen R. Bough of the Western District of Missouri appears to have added some important language requested by NAR lawyers that they say will prevent the Department of Justice (DOJ) from creating chaos with its own enforcement action related to the settlement.
At the hearing yesterday, Chris Bauer, a lawyer for the DOJ Antitrust Division, made it clear the department was prepared to investigate or bring legal action against NAR even for conduct that was allowed under the settlement.
NAR attorney Ethan Glass characterized this scenario as untenable, noting that NAR could potentially be put in the position of having to violate a court order to comply with the DOJ. He urged Bough to include language in his final order that would make it clear that any disputes about the settlement would be heard by Bough.
With the order filed this afternoon, Bough appears to have agreed, writing in the very last paragraph of the 85-page order that he “retains continuing and exclusive jurisdiction over all matters relating to the administration and consummation of the Settlements and to interpret, implement, administer and enforce the Settlements.”
An NAR spokesperson confirmed to RISMedia via email that Bough’s language in the order “is sufficient for NAR.”
Exactly how that might play out when and if the DOJ brings a separate case against NAR is unclear. Antitrust law enforcement made it clear both at the hearing yesterday and in other cases around the country that they are not fully satisfied with the settlement, specifically pointing to Clear Cooperation, mandatory buyer agreements and offers of compensation made between agents off-MLS.
At the hearing, Bough specifically asked Bauer if he would agree to having Bough oversee future disputes involving the settlement. Bauer answered that he was not able to “waive any right,” in reference to the DOJ’s ability to bring litigation or enforcement action in other districts or venues. The DOJ had asked Bough to include language in his order that explicitly stated the settlement did not provide “immunity or defense” from antitrust laws.
That language did not appear to be in the order in any form, and Bough did not directly address the DOJ’s objections in his order, despite those objections taking up a significant portion of the hearing. The DOJ only filed its formal “statement of interest” in the settlement on Sunday, two days before the hearing.
Bough also awarded attorney fees to plaintiffs, at one-third of the approximately $700 million paid by NAR, opt-in brokerages and HomeServices.
Editor’s note: this story was updated with a response from an NAR spokesperson at 1:50 p.m. eastern time.
