The Department of Justice must close its reopened antitrust investigation into the National Association of Realtors, a federal judge ruled this week.

The DOJ reached a settlement with NAR in 2020 requiring NAR to improve transparency on broker commissions and fees. In 2021, with a new presidential administration at the helm, the DOJ withdrew that settlement and reopened its antitrust investigation.

U.S. District Court Judge Timothy J. Kelly ruled Wednesday that the DOJ must honor the original settlement and end its new antitrust investigation.

“We are pleased the court has granted our petition to set aside the Department of Justice’s action and agree it is a violation of the executed settlement agreement,” NAR VP of Communications Mantill Williams said in a statement. 

“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.”

The Consumer Federation of America expressed concern about the judge’s ruling and what it might mean for homebuyers and sellers going forward.

“The court’s decision will limit DOJ’s ability to investigate anti-competitive industry policies costing consumers billions of dollars annually,” said Stephen Brobeck, senior fellow at the CFA.  “These policies are related to the inability of homebuyers to negotiate buyer agent commissions that are directly paid by listing agents and their seller clients. 

“Multiple listing services require listing agents to offer non-negotiable commissions to buyer agents in MLS home listings, which helps explain why research has shown that commissions are high and relatively uniform. The reform of this anti-competitive policy must now come from courts in Illinois and Missouri that are deciding class action lawsuits against NAR and many large real estate firms.”