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NAR victorious in renewed DOJ antitrust probe

Judge rules that terms of the earlier settlement are still valid

After nearly two years of uncertainty, the National Association of Realtors (NAR) finally has an answer following the reopened Department of Justice antitrust investigation into the trade group’s practices.

On Wednesday, Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia ruled that the earlier settlement terms are still valid.

“The government, like any party, must be held to the terms of its settlement agreements, whether or not a new administration likes those agreements,” Kelly, a Trump appointee, wrote in his ruling.

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 his ruling, Kelly stated that allowing the DOJ investigation to continue would take away the benefits NAR had negotiated in the original settlement.

“We are pleased the court has granted our petition to set aside the Department of Justice’s (DOJ’s) action and agree it is a violation of the executed settlement agreement. As stated in the court’s decision “…not setting aside the CID at issue would deprive NAR of the benefit for which it bargained: the closure of the Antitrust Division’s investigation into its Participation Rule and Clear Cooperation Policy,” Mantill Williams, NAR’s VP of communications, wrote in an email. “The government, like any party, must be held to the terms of its settlement agreements…” NAR guidance for local MLS broker marketplaces has long been recognized to ensure fair, transparent and competitive real estate markets for consumers and businesses.”

This story has been updated to include commentary from NAR.