U.S. Justice Department, NAR Agree to Settle Antitrust Case

John Jordan | November 2020

NAR 2021 President Charlie Oppler

WASHINGTON—On Thursday (Nov. 19), the U.S. Department of Justice announced the filing and proposed settlement of an antitrust case against the National Association of Realtors that alleged the association established and enforced illegal restraints on the ways Realtors compete.

With the case filing, the Antitrust Division simultaneously filed a proposed settlement that requires NAR to repeal and modify its rules to provide greater transparency to home buyers about the commissions of brokers representing home buyers (buyer brokers), cease misrepresenting that buyer broker services are free, eliminate rules that prohibit filtering multiple listing services (MLS) listings based on the level of buyer broker commissions, and change its rules and policy which limit access to lockboxes to only NAR-affiliated real estate brokers. If approved, the settlement will enhance competition in the real estate market, resulting in more choice and better service for consumers, according to the U.S. Department of Justice.

The National Association of Realtors announced on its website on Thursday that NAR had reached an agreement with the U.S. Department of Justice to develop rules that more explicitly state what is already the spirit and intent of NAR’s Code of Ethics and MLS policies regarding providing information about commissions and MLS participation.

The announcement authored by NAR General Counsel Katie Johnson in the Realtor Magazine section of the association’s website, stated, “Our rules and policies have long been recognized for creating a competitive and efficient market that benefits home buyers and sellers. This agreement resolves the DOJ’s questions about the multiple listing service (MLS) and commissions and enables NAR to remain focused on supporting our members as they preserve, protect, and advance the American dream of homeownership,” NAR

NAR 2021 President Charlie Oppler said in a videotaped statement, “We want to be absolutely clear that while NAR disagrees with the characterization of our rules and policies and NAR admits no liability, wrongdoing or truth of any allegations by the DOJ, NAR has agreed to make certain changes to its rules to address the questions raised by the DOJ.”

NAR’s Johnson, who also serves as the association’s Chief Member Experience Officer, stated that although the exact language of the settlement agreement is still being finalized for NAR’s rule changes, most of the changes seek to more explicitly state what is already the spirit and intent of NAR’s Code of Ethics and MLS policies regarding providing information about commissions and MLS participation.

“Buying a home is one of life’s biggest and most important financial decisions,” said Assistant Attorney General Makan Delrahim of the Justice Department’s Antitrust Division. “Home buyers and sellers should be aware of all the broker fees they are paying. Today’s settlement prevents traditional brokers from impeding competition—including by internet-based methods of home buying and selling—by providing greater transparency to consumers about broker fees. This will increase price competition among brokers and lead to better quality of services for American home buyers and sellers.”

NAR General Counsel Katie Johnson

According to the complaint, NAR’s anticompetitive rules, policies, and practices include: (i) prohibiting MLSs that are affiliated with NAR from disclosing to prospective buyers the commission that the buyer broker will earn; (ii) allowing buyer brokers to misrepresent to buyers that a buyer broker’s services are free; (iii) enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered; and (iv) limiting access to the lockboxes that provide licensed brokers with access to homes for sale to brokers who work for a NAR-affiliated MLS. These NAR rules, policies, practices have been widely adopted by NAR-affiliated MLSs resulting in decreased competition among real estate brokers, the DOJ charged.

NAR General Counsel Johnson went on to state on the NAR website that in accordance with the MLS system’s long-standing focus on creating an efficient, transparent marketplace for home buyers and sellers, the amount of compensation offered to buyers’ agents for each MLS listing will be made publicly available. Publicly accessible MLS data feeds will include offers of compensation, and buyers’ agents will have an affirmative obligation to provide such information to their clients for homes of interest.

“Relatedly, the rule changes re-affirm that MLSs and brokerages, as always, must provide consumers all properties that fit their criteria regardless of compensation offered or the name of the listing brokerage,” NAR’s Johnson wrote.

She also noted that there will be a rule enacted that will more definitively stated that buyers’ agents cannot represent their services as free to clients.

Finally, with the seller’s prior approval, a licensed real estate agent will have access to the lockboxes of properties listed on an MLS even if the agent does not subscribe to the MLS, NAR added.

NAR will work with the DOJ to agree on exact rule changes within 45 days; then the Board of Directors will then have to approve the new rules. The court overseeing the settlement must formally approve it.

“In entering this agreement with the DOJ, NAR disagrees with the DOJ’s characterization of our rules and policies, and NAR admits no liability, wrongdoing, or truth of any allegations by the DOJ. The agreement does not subject NAR to any fines or payments,” NAR’s Johnson stated.

She continued, “We’re proud to be associated with the MLS system that puts consumers first and benefits home buyers, sellers, and small-business brokerages—and is constantly building upon these principles. This agreement furthers NAR’s and the MLS system’s goal of creating an efficient marketplace that fosters cooperation between brokers for the benefit of consumers.”

The proposed settlement will be published in the Federal Register as required by the Antitrust Procedures and Penalties Act. Any person may submit written comments regarding the proposed final judgment within 60 days of its publications to Chief, Office of Decree Enforcement and Compliance, Antitrust Division, U.S. Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC 20530. At the conclusion of the 60-day comment period, the court may enter the proposed final judgment upon a finding that it serves the public interest.

John Jordan
Editor, Real Estate In-Depth