The Ten: The DOJ, industry bogeyman 

Editor's note: In this year of evolution — much of it mandated by legal challenges — a handful of people and themes have emerged as defining forces. Real Estate News has selected the top newsmakers of 2024, based on their industry impact and influence. They are The Ten.

Many will look back on 2024 as the year lawsuits nearly pushed the National Association of Realtors to a breaking point, prompting its landmark March settlement as it sought an end to "extinction-level litigation." 

But perhaps the most intriguing player in 2024 is one that hasn't brought a suit against the trade association: the U.S. Department of Justice.

Instead, the DOJ spent much of the year continuing its fight to reopen an earlier antitrust probe into NAR, most recently filing a brief with the Supreme Court reiterating that it never promised the association it wouldn't take up antitrust issues again.

The DOJ didn't just focus on reviving an old investigation, however — it also inserted itself in several key cases involving NAR and other industry players, providing plenty of jump scares throughout the year as it weighed in at crucial and often unexpected times. In the process, the agency has shown some of its cards, but many are wondering what corner it will be lurking around next. 

Making its intentions clear on offers of compensation 

Early in the year, it became apparent that the DOJ was keeping a close eye on industry litigation. In February, the Justice Department submitted a statement of interest in the Nosalek case involving MLS PIN, criticizing the original settlement and asking the court to deny approval. 

The DOJ had previously expressed "significant concerns" about the deal — but this time went a step further, suggesting in its statement that "the parties could propose an injunction that would prohibit sellers from making commission offers to buyer brokers at all."

Prohibiting offers of compensation altogether "would promote competition by empowering buyers to negotiate directly with their own brokers," the DOJ argued. Such a sweeping policy change would go well beyond the terms of any of the commission case settlements, but it could be the best way to appease the DOJ, some industry leaders have said.

Meanwhile, the outcome of the MLS PIN deal is still unknown; in June, a judge agreed with the DOJ's request to delay the final approval hearing until after NAR's settlement was approved, and said the agency would have an additional 90 days to review and respond to the agreement.   

Commingling and competition

The Justice Department also expressed a point of view about NAR's "no-commingling" rule, filing a brief in June in a case between Real Estate Exchange (REX) and Zillow. The rule, which prohibits real estate sites that use IDX feeds from displaying MLS listings alongside non-MLS listings, prompted REX — a discount brokerage that bypassed the MLS — to sue both Zillow and NAR (NAR was later dropped from the case).

REX lost to Zillow at trial and was denied a request for a new one, seemingly putting an end to the litigation. 

So why, months later, did the agency get involved? Because, the DOJ argued in its filing, the case intersects with commissions and the role played by NAR and its affiliated MLSs in maintaining them. The no-commingling rule is an example of NAR's ability to limit competition, the agency added, recommending that the case be sent back to District Court for reconsideration. NAR has maintained that the lawsuit is without merit.

Disagreeing with buyer agreements

Also in June, the California Association of Realtors informed its members that a "formal inquiry" by the DOJ was delaying the release of several new forms.

While C.A.R. did not say what the inquiry was focused on, the Justice Department appeared to be most concerned about one form in particular: A new buyer agreement created to comply with policy changes mandated by the NAR settlement. The C.A.R. form allowed brokers to include offers of compensation — something that was not expressly prohibited, but may have been perceived by the DOJ as going against the spirit of the settlement. 

Facing pressure from both the Justice Department and consumer advocates, C.A.R. revamped its forms before making them available to members.

A late-breaking warning

The DOJ's big finale for the year — assuming no holiday season surprises — came in November with an 11th-hour statement of interest in the NAR settlement. Filed on a Sunday, just two days before the final approval hearing, the agency seemed to be flexing its might.

While it didn't take a position on the $418 million deal, the DOJ said in the filing that it intended to continue looking into potential antitrust issues — and raised new concerns about buyer agreements, a core element of the NAR settlement. 

The provision requiring written agreements to be in place before agents can show homes "may harm buyers and limit how brokers compete for clients," the DOJ wrote, adding that it resembled other restrictions that have been found to violate antitrust laws.

Is something bigger on the horizon?

The Justice Department's November filing seemed to send a signal: The agency plans to continue looking at the industry in 2025, with an eye out for anticompetitive behavior. 

"They clearly did what they needed to do by making sure that the industry knows that complying with the settlement is not a safe harbor," said Russ Cofano, CEO of Collabra Technology and a real estate attorney. "I think the DOJ is not done."

It's too soon to know how the Trump administration, which has pledged to overhaul the DOJ, will drive the agency's agenda in the new year — but until the Supreme Court weighs in, the industry will be watching and waiting to see how the saga plays out.