NAR fires back against the DOJ’s statement of interest

With just hours to go before Judge Stephen R. Bough holds a final approval hearing for the National Association of Realtors’ (NAR) commission lawsuit settlement agreement , the trade association has fired back at the statement of interest filed Sunday by the Department of Justice (DOJ).

In its filing, NAR mentions that the DOJ’s statement of interest is “non-binding” and “says nothing that prevents final approval of the NAR Settlement as written.”

NAR also addresses the DOJ’s concerns about mandatory buyer representation agreements, which are now required for all Realtor members based on the terms of the settlement.

In its statement of interest, the DOJ claims that the “provision itself raises independent concerns under the antitrust laws,” and that the agreements have the potential to “limit how brokers compete for clients.”

In its filing, NAR called these concerns “unfounded” and claimed they are “based on a misreading of Paragraph 58(vi)” of the settlement.

According to NAR, the paragraph referenced by the DOJ makes the requirement for mandatory buyer representation agreements contingent on all state and federal laws and regulations. Due to this, NAR writes that “there is no need for the parties to ‘eliminate the provision,’ as the Antitrust Division requests — as written, it already is expressly subject to state and federal law and regulation.”

Additionally, NAR writes that the provision, which the DOJ claims “bears a close resemblance to prior restrictions among competitors that courts have found to violate the antitrust laws in other proceedings,” does not at all resemble these practices.

“Buyers are free to hire a broker (or not) whenever they want; buyers who want to engage a broker are free to hire whatever type of broker they want,” the filing states. “Paragraph 58(vi) just requires that if a buyer wants to work with a broker, the buyer and broker must put their negotiated and agreed upon compensation in writing before the broker brings the buyer to a home. There is nothing anticompetitive about that.”

Despite its rebuttal against these claims, NAR does not deny that the DOJ could potentially take action against it in the future. But NAR also contends that this is “not an issue for the Court to decide at a final approval hearing.”

“The Antitrust Division can continue to enforce the antitrust laws, and a court can make a decision on any hypothetical future disputes at that later time,” the filing concludes.