Real Estate

NAR Fights Back Against DOJ Efforts To Withdraw Antitrust Settlement

The trade group accused the Justice Department of reneging on a binding agreement. NAR also said it had already begun implementing policies based on its DOJ settlement.

A new chapter in an increasingly bitter antitrust lawsuit unfolded Monday when the National Association of Realtors (NAR) filed a petition that, if successful, would force the Department of Justice (DOJ) to stick with a settlement that it is trying to abandon.

In a statement Monday, NAR described its petition as an attempt “to quash a request by the Department of Justice that reneges on the terms of a settlement agreement.” The statement goes on to describe the agreement as “fully binding” and notes that NAR had already begun to “implement it’s terms.” NAR President Charlie Oppler added in the statement that the DOJ’s attempts to back out of the settlement “should be considered null and invalid based on legal precedent alone.”

Charlie Oppler

“The DOJ must be governed by principle, and NAR simply expects the department to live up to its commitments,” Oppler continued in the statement.

The DOJ declined to comment on the record Monday, instead referring Inman previous comments about the case.

The case first became public last November. At the time, the DOJ revealed that it had filed a lawsuit against NAR alleging that its rules functioned as illegal restraints on Realtor competition. Government officials had several specific qualms with NAR policies related to buyer broker payment, lockboxes and other things.

While the case rocked the real estate industry, it also initially seemed like it would be a one-and-done situation; at the same time that the DOJ revealed it had sued NAR, both regulators and NAR itself announced that they had entered a settlement. According to NAR at the time, the settlement “fully resolved” the case and required the 1.5 million member trade group to make a variety of policy changes.

However, in July the DOJ announced that it was pulling out of the settlement. The reversal came because, according to the DOJ, NAR refused to modify the agreement in a way that would protect the officials’ ability to investigate other conduct within the trade group that could impact competition.

In a press release from July, the DOJ further stated that it was “taking this action to permit a broader investigation of NAR’s rules and conduct to proceed without restriction.” Acting Assistant Attorney General Richard A. Powers added in a statement in July that the “proposed settlement will not sufficiently protect the Antitrust Division’s ability to pursue future claims against NAR.”

But NAR quickly pushed back. In its own statement released in July, spokesperson Troy Green called the DOJ’s reversal “a complete, unprecedented breach of agreement.”

Monday’s petition builds on that sentiment, and represents an attempt to legally force the DOJ to stick with the original settlement. In the petition itself, which NAR provided to Inman, the trade organization calls the DOJ’s actions “unprecedented.”

The petition also reveals that the settlement ultimately came after the government agreed to stop investigating multiple NAR rules, including the Clear Cooperation Policy that bans pocket listings. The government has since hinted that the Clear Cooperation Policy could be in its crosshairs.

In Monday’s statement, Oppler went on to suggest that if the DOJ is allowed to back out of the agreement it could have far-reaching legal implications.

“By its action, the DOJ thinks it should be free to reconsider the terms of an agreement at any time, for any reason — or no reason at all,” Oppler argued. “If that view prevails, it would undermine the strong public policy in favor of upholding settlement agreements and public confidence that the government will keep its word in future cases.”

Oppler went on to say that he “remains hopeful the DOJ will honor its agreement.”

“We also remain committed to advancing and defending independent and local real estate organizations,” Oppler concluded in the statement, “that provide for greater economic opportunity and equity for small businesses and consumers of all backgrounds and financial means.”

Read NAR’s petition here: 

Update: This story was updated after publication with additional information from NAR’s petition, as well as with the NAR’s legal documents. 

Email Jim Dalrymple II

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