DOJ’s 11th-hour statement on NAR deal elicits strong reactions
Industry insiders quickly weighed in on the agency’s Sunday filing, which suggested that the settlement won’t protect NAR from future antitrust action.
Key points:
- The DOJ questioned the terms of the NAR settlement and highlighted antitrust issues related to new industry practices, including mandatory buyer agreements.
- Some industry insiders see the filing from the DOJ as a last-minute distraction, while others warned of a much dire threat.
- Reactions ranged from surprise, to anger, to a plea to remain calm and “keep doing what you're doing.”
In what appears to be a last-minute jab at NAR, the Department of Justice has weighed in on the association's settlement to resolve commissions litigation, a move that rippled through the industry last night, eliciting strong reactions from real estate leaders and observers.
The DOJ takes a stand
In a statement of interest letter — which was dropped roughly 48 hours ahead of NAR's final settlement hearing in the Sitzer/Burnett case, where a judge is expected to sign off on the deal — the DOJ requested that if the court does approve the settlement, it should clarify that abiding by the new industry polices does not shield NAR or other potential defendants from future enforcement by the agency.
The DOJ argued that the settlement does not necessarily resolve current or past antitrust violations, and that some of the changes to industry practices may themselves run afoul of antitrust laws.
Industry experts, watchdogs and agents were quick to weigh in on the unexpected 11th-hour move from the DOJ, with some believing the agency is just making noise, and others seeing the action as another step in a campaign to dismantle NAR.
'A last-minute twist'
University at Buffalo law professor Tanya Monestier, who has been following the DOJ's actions in the residential real estate closely and previously weighed in on issues related to buyer agreements and filed her own objection to the NAR settlement, was one of the first to chime in on the latest DOJ statement.
"Well, I didn't see this coming," she wrote in a post published to LinkedIn last night, highlighting issues the DOJ raised with the NAR settlement — specifically that following the new practice changes "does not insulate any defendant from DOJ antitrust action" Monestier said, as well as requiring buyer agreements before touring a home "may itself raise antitrust concerns."
"Talk about a last-minute twist," she said of the issues raised in the DOJ's statement of interest.
DOJ is 'posturing,' making noise
NextHome CEO and industry podcaster James Dwiggins told his followers that there shouldn't be too much immediate concern over the DOJ statement. Instead, he views the move as the DOJ "just posturing" and believes that the judge overseeing the Burnett/Sitzer case "will sign off on the settlement tomorrow regardless."
"They are concerned about buyer rep agreements being signed before people see a home and could lead to antitrust violations," Dwiggins wrote. "16 states have already had mandatory buyer rep agreements in place prior to this settlement, so the DOJ can have fun trying to override state rights. I don't think politically that's something they want to get involved in."
Holly Mabery, SVP of brokerage operations for eXp Realty, also regarded the statement as more noise than an actual threat, telling agents to look past the headlines and stay focused on their customers in this moment.
"The confusion of the headlines and these late filings — that's all this is," she said in a video. "But you have the power to cut through it all like a hot knife through butter as you explain things to your clients in such a way that's succinct, thoughtful and in writing. So continue forward and keep doing what you're doing, as far as advocating for your clients in the best possible way."
The agency wants to see NAR 'destroyed'
Longtime residential brokerage blogger Rob Hahn had a much more dire take, however, interpreting the statement as an existential threat to the industry.
"I believe that the DOJ/FTC will not rest until NAR is destroyed," Hahn wrote in his latest blog post. "For those unable or unwilling to dig in deeper, I'll give you the top line takeaway: The DOJ is coming for NAR. Only total surrender or total regime change can stop it."
Virginia real estate agent Melissa Savenko weighed in on X, criticizing the action from the DOJ, saying that it has made her "furious" and that the industry has already spent a "massive amount of energy, time, money, and effort" to retool industry practices and comply with the terms of the settlement.
"Now the DOJ, eight months after the settlement agreement is negotiated, and three months into implementation, is going to hold its hand up and say 'Hey, this doesn't work for us?' F*ck. You," she wrote.