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DOJ appeals to restart NAR probe

Trade group claims agreement blocked agency from commissions, pocket listings policies

From left: Attorney General Merrick Garland and National Association of Realtors president Kenny Parcell (Getty, National Association of Realtors)

From left: Attorney General Merrick Garland and National Association of Realtors president Kenny Parcell (Getty, National Association of Realtors)

The Department of Justice is pushing to resume its investigation into the National Association of Realtors’ policies on buyer broker commissions and pocket listings. 

The DOJ last week filed an appeal brief pushing back on a a January court decision and the trade group’s claim it couldn’t reopen an investigation into two NAR policies, Inman reported. The policies in question are the Participation Policy and the Clear Cooperation Policy; the DOJ filed its formal appeal in March.

NAR filed a petition in Sep. 2021 attempting to eliminate the DOJ’s civil investigative demand. The group argued it had agreed to a settlement under President Donald Trump’s administration that would prevent further investigation into the NAR policies — but the DOJ withdrew from the proposed settlement under the Biden administration. 

The department’s brief filed last week claims the court misinterpreted a Nov. 2020 letter, which said its antitrust division had closed its investigation of the policies. 

The DOJ argued it never agreed to halt the probe and a lower court made errors in curbing the investigation. The brief said the district court ruling was “absurd” in suggesting the DOJ’s settlement withdrawal meant NAR was released from its obligations under the settlement, but the DOJ couldn’t pick back up investigations.

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It is seeking to reverse the lower court’s decision and continue its investigation, which could potentially affect $100 billion in broker fees paid by Americans each year. 

The disputed policies have led to multiple antitrust lawsuits against NAR. These lawsuits will continue regardless of the appeal’s outcome. 

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A spokesperson for NAR expressed confidence the trade group would prevail, adding it had bargained for “the closure of the Antitrust Division’s investigation into its Participation Rule and Clear Cooperation Policy.” Its brief in the appeal is due next month.

The Justice Department has been seeking to intervene in other cases regarding NAR policies.

— Holden Walter-Warner

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Department Of JusticeNational Association Of RealtorsReal Estate Lawsuits