Justice Department can reopen realtors case, court rules

Leah Nylen

(Bloomberg) — The Justice Department can reopen an antitrust probe into the National Association of Realtors, an appeals court ruled Friday, rejecting a bid by the real estate trade group to enforce a 2020 settlement with the Trump administration to close the case.

“The fact that DOJ ‘closed its investigation’ does not guarantee that the investigation would stay closed forever,” the U.S. Court of Appeals for the DC Circuit wrote in a 2-1 decision. “The words ‘close’ and ‘reopen’ are unambiguously compatible.”

Former President Donald Trump’s administration in November 2020 reached a settlement with the group to end an antitrust investigation into its policies.

The proposed settlement included several requirements for the group — which represents more than 1.5 million agents — including boosting transparency about broker commissions and barring claims that real estate buyers don’t pay for any services. The Justice Department issued a letter stating that it was closing the probe in connection with two of the group’s other rules.

Eight months later, President Joe Biden’s administration withdrew from the settlement, which hadn’t been finalized, and sought to continue the probe.

The organization sued, arguing that the closing letter prevented the Justice Department from restarting its investigation. A lower court judge agreed and the Justice Department appealed.

Judges Florence Y. Pan and Karen LeCraft Henderson sided with the Justice Department. Judge Justin Walker, who was appointed by Trump, dissented and said he would side with the real estate group.

The NAR didn’t have an immediate comment. The Justice Department didn’t respond to a request for comment on Friday’s ruling.

The industry has come under increased scrutiny in recent years, with a Missouri jury in October finding the NAR and others liable of colluding to keep commissions high in a $1.8 billion verdict. To resolve that case and others, the NAR agreed in March to a settlement that would pay sellers roughly $418 million, with the group saying it would also change some of its rules.

The settlement agreement, which needs to be approved by a court, could pressure fees over time, experts have said, although the exact impact is still uncertain.

With assistance from Patrick Clark.