DOJ pulls out of NAR antitrust settlement to pursue further investigation

Realtor trade group calls sudden reversal an “unprecedented breach”

NAR president Charlie Oppler and The Justice Department Attorney General Merrick B. Garland (Getty, NAR)
NAR president Charlie Oppler and U.S. Attorney General Merrick Garland (Getty, NAR)

The Justice Department has abandoned its settlement with the National Association of Realtors, signaling that it intends to conduct a “broader investigation” into the trade group’s practices.

In an abrupt reversal Thursday, the DOJ withdrew its consent to a proposed settlement of an antitrust action brought against the NAR last year and instead filed to voluntarily dismiss its civil complaint without prejudice.

The complaint was filed last November, alongside a proposed settlement that would require NAR to repeal and modify certain “anti-competitive” practices, such as withholding information about broker fees or enabling buyers’ brokers to filter MLS listings based on commissions offered.

The proposed settlement would have prevented the DOJ from pursuing other antitrust claims regarding NAR policies, it said in a statement Thursday.

“Because the settlement resolved only some of the department’s concerns with NAR’s rules, this step ensures that the department can continue to enforce the antitrust laws in this important market,” the statement read.

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But that explanation raises questions, because the proposed settlement, which is public, included a clause that specifically reserved the government’s rights to investigate and pursue further antitrust violations by NAR or its members.

When asked to identify what language limited the government’s ability to pursue future claims, a DOJ spokesperson said “we cannot get into the specifics of the modified language discussed.”

NAR called the DOJ’s decision an “unprecedented breach” in a statement to Bloomberg on Thursday.

“NAR has fulfilled all of our obligations under the settlement agreement, and now DOJ is inexplicably backing out,” the association told the publication. NAR did not respond to a request for comment on Friday.

An antitrust practitioner who has served in the government in the past said the DOJ’s “stated motivation is questionable.”

“The Justice Department should explain this further given the clear carve out,” said the person, who agreed to speak on condition of anonymity.

The DOJ spokesperson declined to comment on whether the antitrust division is pursuing any other cases against NAR at this time.