The


National
Association
of
Realtor’s
ongoing
battle
with
the


Department
of
Justice
is
heating
up
again.
On
Friday,
a
three-judge
appellate
court
panel
in
Washington,
D.C.
heard
oral
arguments
from
both
NAR
and
the
DOJ,
over
whether
the
federal
agency
will
be
able
to
reopen
its
probe
into
the
trade
group.

The
DOJ’s
Antitrust
Division
would
like
to
investigate
NAR’s
Clear
Cooperation
Policy
and
Participation
Rule,
which
are
currently
at
the
epicenter
of
the

proliferating

commission
lawsuits.
Based
on
reports
from
several
news
agencies,
the
panel
of
judges
seemed
inclined
to
allow
the
DOJ
to
reopen
its
probe.

In
2020,
the
DOJ’s
antitrust
division
agreed
to
a
settlement
after
investigating
the
trade
groups
listing
and agent
compensation
policies. The
settlement
proposed
at
the
time
included
requirements
for
NAR
to
boost
transparency
about
broker
commissions
and
to
stop
misrepresenting
that
buyer
broker
services
are
free.

However,
the
DOJ,
under
new
leadership
in
the
Biden
administration,
withdrew
the
settlement in
July
2021,
stating
that
the
terms
of
the
agreement
prevent
regulators
from
continuing
to
investigate
certain
association
rules
that
they
feel
harm
buyers
and
sellers.

NAR
filed
a petition in
September
2021
to
set
aside
or
modify
the
DOJ’s
probes
into
the
trade
group.

In
late January
2023,
Judge
Timothy
J.
Kelly
of
the
U.S.
District
Court
for
the
District
of
Columbia,
a
Trump
appointee,
ruled
in
favor
of
NAR,
stating
that
the
earlier
settlement
terms
were
still
valid,
and
that
allowing
the
investigation
to
continue
would
take
away
the
benefits
NAR
had
negotiated
in
the
original
settlement.

The
DOJ appealed
the
ruling in
March
and
filed
its first
brief in
early
June.
NAR
filed
a reply
brief in
late
July.
Things
finally
came
to
a
head
on
Friday,
when
oral
arguments
were
held.

“The
question
is
whether
in
addition
to
agreeing
to
close
its
investigation,
the
[DOJ
Antitrust]
Division
made
a
commitment
not
to
reopen
it,”
Justice
Department
lawyer
Fred
Liu
argued
appeals
hearing,
according
to
a
report
from

Politico.
“The
division
repeatedly
rejected
such
a
commitment
throughout
negotiations.”

NAR
attorney
Christopher
Michel
argued
that
the
“DOJ’s
entire
case
depends
on
[Liu’s]
contention
that
its
binding
promise
to
close
the
investigation
left
it
with
precisely
the
same
unfettered
discretion
[to
investigate
the
compensation
system]
after
it
made
that
promise
as
it
had
before
it
made
that
promise.”

According
to
Michel,
under
this
interpretation
the
“DOJ’s
promise
would
mean
essentially
nothing
at
all.”

In
reference
to

a
letter
the
DOJ
sent
NAR
in
Nov.
2020,
in
which
the
DOJ
agreed
to
close
its
investigation
into
NAR,
Judge
Florence
Y.
Pan
stated
that
she
couldn’t
“see
how
you
can
read
it
to
make
any
commitments
about
the
future.
The
plain
and
ordinary
meaning
of
‘closed’
does
not
imply
‘and
will
never
reopen.”

“If
I
close
the
door,
does
that
mean
I’m
never
going
to
open
it
again?”
she
added.

Pan
was
appointed
by
President
Joe
Biden.

Judge
Justin
Walker,
who
was
appointed
by
former
President
Donald
Trump,
added
that
the
letter
afforded
NAR
confidence
that
if
the
personnel
and
the
antitrust
division
didn’t
change
after
the
election
it
would
be
in
the
clear.

“You
made
that
bet
and
you
lost,”
Walker
said,
according
to

Bloomberg.

In
an
emailed
statement,
Mantill
Williams,
the
vice
president
of
communication
at
NAR,
wrote
that
the
DOJ’s
attempt
to
reopen
the
investigation
“boils
down
to
an
apparent
institutional
change
of
heart
under
new
DOJ
appointees.”

“The
Justice
Department
is
not
free
to
ignore
the
principles
of
contract
law
and
fair
dealing
that
bind
every
other
party
before
the
courts,”
he
added.
“The
district
court’s
decision
that
the
government
must
be
held
to
the
terms
of
its
2020
settlement
agreement
is
correct
and
should
be
affirmed.”

The
DOJ’s
Antitrust
Division
did
not
wish
to
comment
on
the
appeal
hearing.

The
appeal
comes
at
a
challenging
time
for
the
trade
group,
which
is
currently
facing
several
commission
lawsuits,
which
accuse
NAR
and
many
of
the
nation’s
largest
corporate
brokerages
of
colluding
to
artificially
inflate
real
estate
agent
commissions.

Related