The NAR settlement is approved. Does the DOJ know what’s next?

“A nationwide settlement was a necessary condition for obtaining a settlement for the benefit of the class, a nationwide settlement will save judicial and private resources, and the members of the Class were fully informed of the definition of the class through the notice process settlement class,” Bough added.

He also criticized the monetary damages to be paid by NAR HomeServices of Americawhose settlement he also approved.

“The NAR and HomeServices settlements also account for only a portion of the recovery that the Class has obtained or could obtain in connection with the claims arising from the alleged conspiracy,” he wrote. “Specifically, Class Counsel has reached other settlements with other Defendants that this Court previously granted final approval, and lawsuits against additional Defendants are still pending. While some Class Members have objected that they may not get back every dollar they paid to brokers, that is the nature of settlements, which necessarily reflect compromise.”

The ruling also emphasized that the monetary amount was not the only thing included in the settlement. NAR has also agreed to “substantial practice changes.”

Bough’s decisive ruling on the settlement came despite a last-minute filing by the Ministry of Justice (DOJ). In a statement of interest filed Sunday evening, less than 48 hours before the final approval hearing was set to begin, the DOJ took issue with the settlement provision that requires buyers to sign an agent representation agreement before touring a home with an agent. The DOJ believes that buyer agent agreements have the potential to “limit the way brokers compete for clients.”

“It is very similar to previous restrictions among competitors that courts have found violate antitrust laws in other proceedings and could limit—rather than enhance—competition for buyers among buyer agents,” the DOJ wrote.

The DOJ also noted that the approval of the settlement “does not preclude any future enforcement actions by the United States, and compliance with the proposed settlement or the new NAR rules implementing that settlement will not provide a defense to such enforcement actions.”

Although Bough did not explicitly address the DOJ’s request, he did write that “the NAR settlement’s practice changes were developed in consultation with experts from the economic and real estate industries. Co-Lead Counsel also has extensive antitrust expertise and has developed knowledge of the real estate industry based on half a decade of detailed factual and expert discovery and research.”

Dark future

Due to the DOJ’s Declaration of Interest, real estate industry veteran and San Diego MLS CEO Saul Klein has mixed feelings about Bough’s statement.

“The finalization of the proposed settlement is a good thing because you get closure on one side,” Klein said. “But is it good news? I think it’s interesting news and it raises a lot of questions for people.”

For Klein, most of these questions concern the buyer representation agreements that the DOJ has now made clear are in its crosshairs.

“As real estate agents, we have been terrified of antitrust for years. “We knew that talking about commissions wasn’t a good thing, but now with these agreements and what the DOJ has written, it’s so vague that it’s hard to say what is or isn’t a violation,” Klein said.

“I am pleased that I do not have to decide whether or not to comply with this civil litigation settlement, which the DOJ has made very clear that they are not bound by and are concerned about.”

In an ideal world, Klein would like to know more about how the DOJ views buyer representation agreements as an antitrust issue. There is a chance, he said, that only certain types of agreements (such as exclusive agreements or agreements that last several months) will pose problems in the eyes of the DOJ. But he’s not hopeful, especially considering that such clarity can’t come until the DOJ files charges against NAR.

Unfortunately for the sector, he sees this as a real possibility.

“I wouldn’t be surprised if the DOJ didn’t take action one way or another within the next 60 days,” Klein said. “In 2018, as soon as the Consent Decree from 2008 expired, they held hearings, so I would expect something similar. I think the next shoe to drop will be something from the government – ​​the DOJ or the Federal Trade Commission.”

Klein is not alone in his beliefs.

“Now you’re really wondering if the DOJ will appeal the approval to a federal appeals court,” said Steve Murray, the co-founder of RealTrends advice “That is certainly a possible option.”

Despite this ominous warning, Murray believes that the installation of the second Trump administration will lead to a softening of the DOJ’s approach to NAR. But because the DOJ’s most recent investigation into NAR began under the first Trump administration, others are not so optimistic.

While the future remains unknown even with NAR’s settlement approved, industry experts agree that the ongoing antitrust saga is far from over. “I’m someone who doesn’t think it’s over until it’s over – and this is certainly not over,” Murray said.