Will the DOJ sue NAR in 2025 — or back off? 

With its commissions settlement approved, the National Association of Realtors is starting the new year with a clean slate of sorts — but the DOJ, which has involved itself in numerous industry lawsuits and other actions in recent years — could change all that.

A key question in 2025 is whether the U.S. Department of Justice will succeed in rebooting its investigation into NAR and potential antitrust issues, or find itself reined in by a new presidential administration. 

New leadership brings uncertainty

It's too soon to know how the DOJ will approach the real estate industry once Donald Trump is sworn into office on January 20. In 2020, under the previous Trump administration, the agency brokered a deal with NAR — but a lot has changed since then. The Sitzer/Burnett verdict compelled the adoption of new compensation rules and practices, while issues including mandatory membership requirements and the Clear Cooperation Policy have spurred heated debates and lawsuits from within the industry itself.

Trump's nomination of Gail Slater to lead the DOJ's antitrust division doesn't provide much clarity either. Slater is known as an antitrust hawk and is expected to crack down on Big Tech; if she views the National Association of Realtors through the same lens, that could mean continued or new litigation.

But right now, it's a guessing game. "I think some people are assuming some things that may or may not be the case based on the new administration. I wouldn't be assuming anything in that regard," said Russ Cofano, CEO of Collabra Technology and a real estate attorney.

The Trump effect

Still, some wonder whether Trump's background in real estate and his own experiences with the agency will influence how the DOJ approaches the industry during this four-year term. At the NAR NXT conference in November, Boston-based broker-owner Anthony Lamacchia said he expects the DOJ will get their "wings clipped" after "overplaying their hand" in real estate and other areas.

The agency has already taken a step back in at least one area of the industry. RealPage, an AI-powered property management platform, announced in December that the DOJ had ended its investigation into multifamily rental pricing practices.

But that doesn't mean the agency will take the pressure off NAR. Among his predictions for 2025, industry observer Rob Hahn said he thinks the DOJ will sue NAR in the coming year, noting that while Trump isn't happy with the DOJ's criminal division, the president-elect doesn't appear to take issue with the antitrust division.

Hahn believes any lawsuits will likely come after the new administration is in place, and may also hinge on the Supreme Court denying NAR's petition to prevent the DOJ from reopening its antitrust investigation.

"As far as the DOJ is concerned, it will be time to get on down to the main attraction, with a little less talk, a lot more action," Hahn said in a Dec. 23 post on his Notorious R.O.B. substack.

A looming Supreme Court decision

About that petition: The dispute between NAR and the DOJ over whether the agency can reopen an antitrust investigation it closed in 2020 is now in the hands of the Supreme Court. In October, NAR requested a review of the case by the highest court after the U.S. Court of Appeals sided with the DOJ. The argument boils down to semantics: Since the case was "closed," does that mean it could never be reopened?

In a December filing, the DOJ said it told NAR it couldn't promise to never take up antitrust issues again, calling such a commitment a "nonstarter." In a response filed later in the month, NAR argued that the government must keep its contractual promise, just like any other party.

The Supreme Court may consider whether to hear further arguments in the case during a conference scheduled for Jan. 10.