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NAR should play ball with regulators: antitrust experts

Trade group embroiled in DOJ investigation after scuttled settlement

NAR President Charlie Oppler and Attorney General Merrick Garland (Getty, NAR)
NAR President Charlie Oppler and Attorney General Merrick Garland (Getty, NAR)

Antitrust experts recently advised the National Association of Realtors and other industry members to work with federal authorities as the agencies ramp up their attention on the sector’s rules.

Panelists at last month’s Council of Multiple Listing Services conference warned federal authorities are paying more attention to consolidation and consumer issues across a wide spectrum of industries, including real estate, Inman reported.

The NAR last month moved to block an antitrust probe from the DOJ after a settlement between the parties collapsed.

The DOJ withdrew from an agreement in July in favor of a “broader investigation” into the trade group’s alleged anti-competitive practices. The original settlement would have required the association to repeal and modify various practices, such as withholding information about broker fees.

President Joe Biden’s time in office has brought scrutiny over the real estate industry. The Justice Department has been looking into practices that could create a closed market for buying and selling homes, which can lead to higher fees and suppress competition. Additionally, the FTC is pursuing a probe into Zillow’s $500 million acquisition of ShowingTime.

“This is not a blip,” Alicia Batts, an antitrust partner at Faegre Drinker Biddle & Reath LLP, said of recent activity. “I think the FTC is likely to make rules. The chair will want her control of the FTC to be successful and she’s got to report into the White House. So they’re going to do something.”

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Inman reported that Batt’s fellow antitrust partner Dylan Carson said “the cavalry is coming” for enforcement on antitrust issues.

“There’s bipartisan consensus that the budgets of both enforcement agencies should be significantly increased and there’s bills to essentially double the FTC budget and significantly increase the DOJ’s budget,” Carson said.

When it comes to responding to increasing pressure for federal regulation, Batts said she recommends members of the real estate industry band together to form a voice in the conversation.

“So you should prepare to do something, or to be active participants, whether it’s through an association, but you should work jointly,” Batts said, according to Inman. “It’s more effective to come in and work jointly than to have MLSs doing different things and going in different directions.”

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[Inman] — Holden Walter-Warner

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