Trends 2025: What does the DOJ want from the industry? 

Editor's note: Since 2006, the Swanepoel Trends Report has provided in-depth research and analysis to help leaders understand the forces shaping residential real estate. This exclusive series of excerpts highlights each trend featured in the 2025 report, which was released in November 2024.

Essential Primer of Pending DOJ and Legal Scrutiny in 2025: The Department of Justice has been keeping a close watch over the real estate industry in recent years, and it appears ready to pursue new (or continuing) investigations in 2025. But what's the end game? The agency's perspective is most clearly articulated in a document filed early last year — and it's recommended reading for all industry leaders. 

The following excerpt, taken from T3 Sixty's 2025 Trends Report, highlights key passages from that document — a statement of interest filed in the MLS PIN case — followed by expert commentary. 

What the DOJ wants

The DOJ is clearly watching legal and policy proceedings and has a point of view, which it spelled out perhaps most clearly in its commentary in the Statement of Interest in the MLS PIN proposed settlement agreement on February 15, 2024.

T3 Sixty recommends that leaders read this 38-page document in its entirety as it is the clearest elucidation of the DOJ's arguments.

Select DOJ commentary

A portion of the DOJ's commentary reads:

As long as sellers can make buyer-broker commission offers, they will continue to offer "customary" commissions out of fear that buyer brokers will direct buyers away from listings with lower commissions — a well-documented phenomenon known as steering. When sellers make such offers, buyer brokers need not compete on price to attract buyers. The settlement does not ameliorate these dynamics at the heart of Plaintiffs' complaint. As a result, commissions on home sales will remain inflated, reducing the net amount the seller receives for the home and driving up the purchase price paid by the buyer. The proposed rule therefore raises serious antitrust concerns in its own right.

The DOJ also advocates for a more market-based solution:

To address the competitive problem alleged by Plaintiffs, the Settling Parties could agree to an injunction that prohibits offers of buyer-broker compensation by MLS PIN participants.

If MLS PIN rules prohibited sellers and listing brokers from deciding what buyer brokers would be paid, sellers would be responsible for determining only the compensation of their own broker in the listing contract, while buyers would be responsible for determining the compensation of their own broker in a buyer-broker representation contract.

Preventing sellers and listing agents from setting buyer-broker commissions would promote greater price competition and innovation in the market for brokers' services. If buyers set the compensation for their own brokers directly, some buyer brokers might choose to offer flat fees or hourly rates in lieu of percentage commissions, since the amount of time and effort required by a buyer broker has a weak correlation, if any, to the ultimate sales price of the house. And most, if not all, buyers would likely prefer a fee structure that does not reward their broker for helping them to pay more for a home.

T3 Sixty commentary

The DOJ's fundamental concern is that as long as sellers and their brokers set the pricing for buyer agent services via offers of compensation, the threat of steering exists, and that, in some cases, actual steering occurs.

Additionally, mirroring an allegation in the Sitzer-Burnett case, the DOJ feels this practice leads to buyer agent services price fixing. The DOJ wants buyers and their agents to agree up front on services provided and their price. This change of practice, the DOJ believes, will lead to more competitive buyer agent service rates and simultaneously unburden sellers from setting a cooperative compensation amount up front.

The real estate industry has long represented compensation-sharing as a business-to-business cost of the listing broker, a marketing or sales fee. Buyer's agents, in this framing, are compensated for "bringing the buyer," not for "services provided to the buyer."

This obviously contradicts the DOJ's (and the civil litigator's) interpretation of the market for buyer agent services and the NAR settlement agreement language itself.

Read the full chapter for more on the DOJ and other legal issues facing the industry in 2025. Digital and printed copies of the 2025 Swanepoel Trends Report are available for purchase at T3 Trends.

Note: T3 Sixty and Real Estate News share a founder, Stefan Swanepoel.