Antitrust enforcers want the High Court to overturn a ruling restricting an investigation into the real estate group’s participation rules and clear cooperation policy.
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The U.S. Department of Justice has filed an appeal seeking to overturn the lower court’s ruling in favor of the National Association of Realtors. This limits the ability of antitrust law enforcement to investigate trade association policies regarding buyer broker fees and pocket lists.
The Jan. 25 ruling reversed DOJ’s requests for information from the NAR regarding these policies, elicited mixed responses from agents, brokers, and other industry stakeholders, and decreed two controversial rules. It marked a divide within the real estate industry. The NAR has his 1.5 million members nationwide.
On Friday, the Justice Department officially appealed Judgment to the Court of Appeals for the District of Columbia. The agency’s filing does not contain any other details about the appeal, nor does it say when DOJ will file an opening statement explaining its reasons for opposing the ruling. Inman has reached out to her DOJ and will update this article with a response.
The rules at issue in this case are the subject of multiple antitrust lawsuits filed against the NAR, some of which the Department of Justice intervened. Regardless of the DOJ investigation, these lawsuits are ongoing.
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NAR spokesperson Mantil Williams told Inman in an emailed statement: The NAR supports termination of our agreement, and the DOJ expects the same. ”
“NAR guidance for the local MLS brokerage market has long been recognized as promoting a fair, transparent and competitive real estate market for consumers and businesses,” he added.
In 2019, DOJ submitted a Civil Demand for Investigation (CID) to the NAR for several of its regulations. The parties reached a settlement while the DOJ was under the Trump administration, but on July 1, 2021, the agency abruptly withdrew from its settlement agreement after the Biden administration took over.
A few days later, the agency sent another CID to the NAR, asking for new information on two trade association regulations.
- of Participation rules In order to submit a listing to a real estate agent-related MLS, the listing broker is required to provide the buyer broker with a lump sum and unilateral indemnification.
- of Clear cooperation policy Listing brokers are required to submit their listings to the real estate agent-related MLS within one business day of making the property available to the public.
In September 2021, the NAR filed a petition seeking to vacate the DOJ’s request, and the NAR agreed to the settlement through a letter confirming that the DOJ had completed its investigation into its participation rules and clear cooperation policy. claimed to be after being guaranteed to receive DOJ then sent the letter.
In January, Washington, DC District Court Judge Timothy J. Kelley granted NAR’s petition, ruling that the request violated a “validly executed settlement agreement” between the parties.
“In short, not setting aside the CID in question would deprive the NAR of its negotiated gains — the conclusion of the Antitrust Division investigation into rules of participation and clear co-operation policy. memo accompanying order.
“The government, like any other party, must honor the terms of its settlement agreements whether the new administration likes those agreements or not. it won’t.”
However, Kelley did not rule out future investigations into the NAR, or into the rules at issue, should the NAR change its rules or how they are enforced.
Email Andrea V. Brambilla.
