BAM Key Details
- In 2021, after the change in presidential administrations, the Department of Justice’s Antitrust Division reopened investigations against NAR. The investigations were previously closed in 2020.
- Today, Judge Timothy Kelly ruled that the settlement terms agreed to in 2020 are valid, including the closure of the Antitrust Division’s investigation into NAR’s Participation Rule and Clear Cooperation Policy.
In a turn of events for the National Association of REALTORS® (NAR), Judge Timothy Kelly ruled the Department of Justice follow settlement terms reached in 2020 regarding its antitrust investigation.
This win for NAR means the DOJ must set aside the lingering Civil Investigative Demand (CID), which was issued to NAR after reopening the case in 2021.
History of NAR vs. DOJ
To get an understanding of the years-long case, here’s a brief history according to court documents filed on January 25, 2023.
2019—the Department of Justice’s Antitrust Division opened an investigation into policies of the National Association of Realtors—including its “Participation Rule” and “Clear Cooperation Policy.”
2020—NAR and the DOJ’s Antitrust Division began negotiating a potential settlement. Once both parties agreed to terms, the Antitrust Division filed papers and sent a closing letter to NAR, confirming “That the Antitrust Division ha[d] closed its investigation into [NAR’s] Clear Cooperation Policy and Participation Rule” and that NAR had “no obligation to respond to” any corresponding CIDs.
After a settlement was reached, NAR began changing its policies to comply with the agreement. Since the Participation Rule and Clear Cooperation Policy were not part of the Stipulation and Proposed Final Judgement, those rules were not modified.
January 2021—NAR contacted the Antitrust Division to approve its policy changes. After the change in the presidential administration, the Biden administration did not respond until April 2021. Rather than approving (or rejecting) the changes, however, the Antitrust Division set out to renegotiate the agreement.
July 2021—the Antitrust Division reopened the investigations it agreed to close under the Trump administration, issuing a CID against NAR similar to those in the prior settlement. To respond, NAR filed a petition to set aside the new CID as a breach of the settlement reached in 2020.
January 2023 Ruling
Today, a year and a half after investigations were reopened, United States District Judge Timothy Kelly ruled that settlement terms agreed to in 2020 are valid, including the closure of the Antitrust Division’s investigation into NAR’s Participation Rule and Clear Cooperation Policy.
In his ruling, Judge Kelly stated,
“The government, like any party, must be held to the terms of its settlement agreements, whether or not a new administration likes those agreements. For this reason, the CID at issue must be set aside.”
This may be a small win for NAR, but it is a win nonetheless. In an email obtained by Real Trends, Mantill Williams, NAR’s VP of communications, wrote:
“We are pleased the court has granted our petition to set aside the Department of Justice’s (DOJ’s) action and agree it is a violation of the executed settlement agreement. As stated in the court’s 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. 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 ensure fair, transparent and competitive real estate markets for consumers and businesses.”
