As predicted, the Department of Justice (DOJ) is appealing a U.S. District Court judge’s ruling in its renewed antitrust investigation into the National Association of Realtors (NAR). The appeal notice was filed on Friday in the United States Court of Appeals for the District of Columbia Circuit.
“It is a great American pastime to never accept any court decision until you have finally been shut down by the U.S. Supreme Court. So, in short, yes, I do expect the DOJ to appeal the decision,” Steve Murray, the co-founder of RealTrends Consulting, told RealTrends in early February. “They will take it to a Federal Appellate court, and the court will have to decide if the judge made a mistake in his judgement.”
In late January, Judge Timothy J. Kelly ruled that the earlier settlement terms reached by NAR and the DOJ were 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.
“Regardless of the DOJ’s appeal, we remain confident in our position and that we will ultimately prevail. NAR has upheld our end of the agreement, and we simply expect the DOJ to do the same. As stated in the court’s original 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 vice president 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 promote fair, transparent and competitive real estate markets for consumers and businesses.”