An appeals court granted the Department of Justice (DOJ) the authority to reopen an antitrust investigation into the National Association of Realtors (NAR) on Friday.
In a 2-1 decision, a panel of judges on the District of Columbia Circuit Court of Appeals reversed a lower court's decision to “vacate” a 2021 investigative subpoena from the Justice Department's Antitrust Division that it issued in a previously closed investigation into NAR's commission-related policies and home seller choices, according to For Friday deposit.
NAR previously reached a settlement with the Department of Justice during the Trump administration. The Biden administration rescinded the settlement agreement and chose to continue the investigation until a lower court blocked its ability to do so in 2023. Friday's court decision ruled that a case that was previously closed did not mean it could not be reopened, allowing the court to void the settlement agreement. The Department of Justice will continue its investigations into potential antitrust conduct.
“In our view, the plain language of the disputed 2020 letter allows the Department of Justice to reopen its investigation. We therefore reverse the district court’s ruling,” Judge Florence Pan wrote in the majority ruling on Friday.
At the heart of the legal battle against the RTA are high commission rates on home sales, paid by the buyer, which are contributing to increasingly high home prices.
The Realtors Association recently agreed to pay $418 million in a settlement with home sellers over commission rates.
in statement By the Justice Department on Friday, Jonathan Kanter, Assistant Attorney General for the Justice Department’s Antitrust Division, said, “[r]Real estate commissions in the United States far exceed those in any other advanced 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 cost of buying and selling a home. I want to commend the Antitrust Division staff and our colleagues in the Division for achieving this important result,” Kanter continued.
Judge Justin Walker cited the previous agreement between NAR and the Department of Justice as reason for his dissent, noting that NAR “entered into a contract with the Department of Justice’s Antitrust Division.”
“As in every contract, each side gained something, and each side gave up something,” Walker said. “The brokers agreed to abandon four policies that the Department of Justice deemed anticompetitive. In exchange, the Department of Justice promised that it had 'closed' its investigations into two other policies.
NAR criticized the ruling in a statement POLITICOSaying she is considering how to proceed.
“NAR believes the government should abide by the terms of its contracts,” NAR spokesperson Mantel Williams told the outlet. “We are reviewing today’s decision and evaluating next steps.”
The Hill has reached out to NAR.
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