NAR Opposes DOJ’s Settlement Agreement Withdrawal

The National Association of REALTORS® (NAR) is fighting the Department of Justice’s (DOJ) attempts to back out of their antitrust lawsuit settlement.

NAR filed a petition on Sept. 13 to revoke the Justice Department’s request to withdraw from its November 2020 settlement agreement, claiming the DOJ action should be void based on legal precedent.

“By its action, the DOJ thinks it should be free to reconsider the terms of an agreement at any time, for any reason—or no reason at all,” said Charlie Oppler, NAR president, in a statement. “If that view prevails, it would undermine the strong public policy in favor of upholding settlement agreements and public confidence that the government will keep its word in future cases.”

The petition comes after the DOJ announced it was reneging on its settlement from November 2020. According to NAR, the terms were already negotiated and approved by the head of the Antitrust Division at that time.

The petition notes that the Antitrust Division agreed to close civil antitrust investigations concerning two of NAR’s policies for multiple listing services (MLS), called the Participation Rule and the Clear Cooperation Policy.

Along with making several changes, NAR agreed to enter into a Consent Judgement in exchange for the Antitrust Division closing its investigations.

In July, the Justice Department claimed that it was withdrawing from the agreement so it could perform a broader investigation into NAR’s rules.

The DOJ wouldn’t comment on the ongoing or future investigation or enforcement actions but instead directed RISMedia to its previous statements on its decision to withdraw from the settlement agreement.

“The proposed settlement will not sufficiently protect the Antitrust Division’s ability to pursue future claims against NAR,” said Acting Assistant Attorney General Richard Powers of the DOJ’s Antitrust Division in a July statement. “Real estate is central to the American economy and consumers pay billions of dollars in real estate commissions every year. We cannot be bound by a settlement that prevents our ability to protect competition in a market that profoundly affects Americans’ financial well-being.”

NAR lambasted the DOJ’s request, calling it a “complete, unprecedented breach of agreement,” after the association had already begun to implement the agreed-upon changes, such as:

– Prohibiting MLSs that are affiliated with NAR from disclosing to prospective buyers the commission that the buyer broker will earn

– Allowing buyer brokers to misrepresent to buyers that a buyer broker’s services are free

– Enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered

– Limiting access to the lockboxes that provide licensed brokers with access to homes for sale to brokers who work for an NAR-affiliated MLS.

“While this petition is about NAR and NAR’s recent settlement with the Antitrust Division, much more is at stake,” read an excerpt from the petition. “Subjects of government investigations must be able to rely upon the commitments, settlements, and plea agreements entered into by the federal government, particularly in law enforcement matters.”

This isn’t the NAR’s first run-in with the DOJ. The Justice Depart filed a lawsuit against the organization in 2005 that alleged that NAR rules limit competition from real estate brokers who use the internet to serve their customers.

Both parties reached an agreement in 2008. The settlement terms required NAR to repeal its anti-competitive policies and MLSs to repeal rules based on these policies.

Texas-based Real Estate Exchange (REX) has also pursued lawsuits against the association on similar allegations and has even commissioned a study to support its point. In September, the legal battle resurfaced after a U.S. District Court judge denied NAR’s calls to dismiss the case.

Oppler also addressed the DOJ’s actions and previous anti-competitive allegations in a July commentary to debunk misconceptions about the real estate industry.

Despite the Justice Department’s decision, Oppler maintained that NAR is optimistic that the DOJ will honor its agreement.

“We also remain committed to advancing and defending independent and local real estate organizations that provide for greater economic opportunity and equity for small businesses and consumers of all backgrounds and financial means,” Oppler said.

This is a developing story. Stay tuned to RISMedia for updates. 

Jordan Grice is RISMedia’s associate content editor. Email him your real estate news to jgrice@rismedia.com.