Court gives DOJ authority to reopen investigation of Realtors

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An appeals court on Friday gave the Department of Justice (DOJ) the authority to reopen an antitrust investigation into the National Association of Realtors (NAR).

In a 2-1 decision, a panel of judges on the District of Columbia Circuit Court of Appeals overturned a lower court’s decision to “set aside” a 2021 investigative subpoena from the DOJ’s Antitrust Division, which it had previously unsealed in NAR. Was issued in the investigation. The policies related to commissions and home sellers’ choices, according to Friday’s filing.

NAR previously reached a settlement with the DOJ during the Trump administration. The Biden administration canceled the settlement agreement and opted to continue the investigation until a lower court blocked the ability to do so in 2023. Friday’s court ruling ruled that previously closing the case does not mean it cannot be reopened, allowing that. The DOJ will continue to investigate potential antitrust behavior.

“In our view, the clear language of the disputed 2020 letter allows DOJ to reopen its investigation. We therefore reverse the district court’s decision,” Judge Florence Paine wrote in the majority decision Friday.

At the center of the legal battle against the real estate trade organization is the high commission rates paid by buyers on home sales, which contribute to increasingly unaffordable home prices.

The Realtors Association recently agreed to pay $418 million in a settlement with home sellers on commission rates.

In a DOJ statement on Friday, Assistant Attorney General Jonathan Cantor of the DOJ Antitrust Division said, “[r]Eel-estate commissions in the United States far exceed those in any other developed economy, and this decision restores the Antitrust Division’s ability to investigate potentially illegal conduct by the NAR that may contribute to this problem.

“The Antitrust Division is committed to fighting to lower the costs of buying and selling homes. I would like to commend the Antitrust Division staff and our colleagues across the Department for achieving this important result,” Cantor added.

Judge Justin Walker cited NAR and DOJ’s previous agreement as the reason for the dissent, stating that NAR “had a contract with the Antitrust Division of the Department of Justice.”

“As with every contract, each party gained something and each party gave up something,” Walker said. “Realtors agreed to drop four policies that the DOJ deemed anti-competitive. In return, the DOJ promised that it had ‘closed’ its investigation into the two other policies.

NAR criticized the decision in a statement to POLITICO, saying it was considering how to proceed.

“NAR believes the government should stick to the terms of its contracts,” NAR spokesperson Mantille Williams told the outlet. “We are reviewing today’s decision and evaluating next steps.”

Hill has reached out to NAR.

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