National Association of Realtors logo and the scales of justice.
Illustration by Lanette Behiry/Real Estate News

DOJ asks Court of Appeals to reopen case against NAR 

The DOJ wants to revisit an antitrust case originally settled in 2020, and if successful, could demand even more changes to commission practices.

December 1, 2023
2 minutes

The U.S. Court of Appeals in Washington D.C. heard oral arguments on Dec. 1 about whether the Department of Justice can reopen a sweeping antitrust case against the National Association of Realtors, adding one more court headache to what has already been a busy year of litigation for the organization.

Background: The DOJ originally opened an investigation into NAR in 2019. In Nov. 2020, the association reached a settlement with the Trump-era DOJ, under the condition that the case could not be reopened. In 2021, following the change of administrations, the DOJ under Biden wanted to withdraw from the deal and reopen the investigation. That move was rejected in district court, but was appealed.

Today's hearing: A three-judge panel heard arguments centered around whether a case that was settled could be reopened, Politico reported. Judge Florence Pan questioned NAR's assertion that it couldn't be reopened, asking where that was spelled out in the settlement.

"The plain and ordinary meaning of 'closed' does not imply 'and will never reopen,'" Pan said.

NAR's response: In an email, Mantill Williams said the district court's decision should be affirmed.

"The DOJ's alarming attempt to reopen a closed investigation it settled years ago boils down to an apparent institutional change of heart under new DOJ appointees," Williams said. "The Justice Department is not free to ignore the principles of contract law and fair dealing that bind every other party before the courts."

Potential implications: If the DOJ is successful in reopening this case, it could have implications for buyer and seller agent fee structures. This would be on top of changes that may result from the many private lawsuits across the country including Sitzer/Burnett, where a jury rendered a verdict of nearly $1.8 billion in damages in October, which could be tripled per antitrust case law.

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