Ministry of Justice
“The fact that the Department of Justice ‘closed an investigation’ does not guarantee that the investigation will ever be closed,” the U.S. Court of Appeals for the D.C. Circuit wrote in a 2-1 ruling. “The terms ‘closed’ and ‘reopened’ are expressly compatible.” .”
Former President Donald Trump’s administration reached a settlement with the group in November 2020, ending an antitrust investigation into its policies.
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The proposed settlement includes a number of demands for the group, which represents more than 1.5 million brokers, including increasing transparency about broker commissions and banning claims that real estate buyers pay no fees for services. The Justice Department sent a letter saying the group was closing the investigation in connection with two other rules governing the group.
Eight months later, President Joe Biden’s administration has withdrawn from the settlement, which has not yet been finalized, and is seeking to continue the investigation.
The group sued, saying the closing letter prevented the Justice Department from reopening the investigation. A lower court judge agreed, and the Justice Department appealed.
Judges Florence Y. Pan and Karen LeCraft Henderson sided with the Justice Department, while Trump appointee Judge Justin Walker ) disagreed and said he would side with the real estate group.
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NAR had no immediate comment. The Justice Department also did not respond to a request for comment on Friday’s ruling.
The industry has come under increasing scrutiny in recent years, with a Missouri jury in October finding NAR and others liable in a $1.8 billion verdict for conspiring to maintain high commissions. To resolve that and other cases, NAR agreed in March to a settlement that would pay sellers about $418 million and the group said it would also change some rules.
The settlement, which requires court approval, could put pressure on costs over time, but the exact impact remains uncertain, experts said.
