Ahead of a Nov. 26 final approval hearing on NAR’s proposed class action settlement, Justice Department lawyers narrowed down a provision that would require a written agreement between purchasers and agents before touring.
Whether you’re refining your business model, mastering new technology, or finding a strategy to take advantage of the next market boom, Inman Connect New York prepares you to take a bold step. The next chapter is about to begin. Please join us. Join us and thousands of other real estate leaders from January 22-24, 2025.
The Justice Department submitted a five-page statement of interest Sunday to Sitzer | The Barnett case comes two days before a final hearing on the National Association of Realtors’ proposed fee settlement.
Justice Department lawyers did not take a position on whether Judge Stephen R. Baugh should approve the settlement Tuesday, but they did require buyers and agents to enter into written agreements before visiting homes. He expressed disapproval of mandatory regulations. The rule is part of significant practice changes that went into effect in August. Antitrust settlement proposal.
Participate in the November INMAN Intel Index Survey
Lawyers also warned that the practice changes announced in March do not preclude further legal challenges, and that the settlement agreed to by most industry players does not protect against future enforcement. Bo added that clarification should be made.
“Although the court may ultimately find the proposed settlement to be satisfactory, representing significant concessions to the interests of the private actors in this case; [settlement rules]“Such a determination will ensure that the proposed settlement effectively prevents or suppresses ongoing antitrust violations, provides relief for past violations, or is itself fully compliant with antitrust laws.” It does not imply consideration of customary practices,” the lawyers wrote.
NAR and the brokerage firms, franchisors and MLSs that have agreed to settlements or negotiated on their own may seek to use those agreements as a “shield against future enforcement actions” by the Justice Department, lawyers say. added.
“For this reason, the United States does not believe that if a court approves a settlement, that approval will determine whether the proposed settlement will prevent and control current antitrust violations, remediate past violations, or comply with antitrust violations.” “We respectfully request that you clarify that we do not address whether this includes modifications to policies or practices that violate antitrust laws,” the lawyers wrote.
Specifically, the Justice Department took aim at a provision that requires buyers and agents to enter into a written agreement before inspecting a home, which in other cases “has been ruled by courts to violate antitrust laws.” “This closely resembles prior restrictions between certified competitors.” .
“A buyer broker under the proposed rule would not be able to tour a home, even a non-obligatory viewing, without first obtaining a written agreement,” the attorneys wrote. “Concerns therefore remain that broker agreement rules may limit how brokers can compete, and there is no record available of the current position addressing this concern.”
Lawyers wrote that this concern could be addressed in multiple ways. The first is to abolish this provision.
Alternatively, it could “deny that this settlement gives rise to immunity or defenses under antitrust laws.”
“Alternatively, the court could clarify that approval of the proposed settlement provides no immunity or defense to the terms of the agreement with the buyer,” they wrote.
“Because the United States is not a party to this litigation or the proposed settlement, the proposed settlement does not limit the United States’ ability to enforce its antitrust laws, including by seeking greater relief for the conduct at issue here.” the lawyers wrote. .
Even if Mr. Baugh approves the settlement, Justice Department lawyers made clear that does not mean the focus on the industry ends.
“The United States continues to scrutinize policies and practices in the residential real estate industry that may inhibit competition,” they wrote. “It is a matter of public record that the United States is conducting a public investigation into these practices.”
Email Taylor Anderson
Read the submission here. [Refresh page if the PDF doesn’t load on the first attempt.]
