Nothing like an 11th hour twist. Sunday evening, less than 48 hours before the day The National Association of Realtors’ (NAR) Commission termination agreement set for final approval, Department of Justice (DOJ) has filed its long-awaited statement of interest in the Sitzer/Burnett suits.
The DOJ notes in the filing that it did not participate in the lawsuit or in the negotiations for the proposed settlement.
“The United States continues to scrutinize policies and practices in the lodging industry that may restrict competition. Real estate competition is important and home ownership is an important part of American household wealth,” the DOJ wrote.
Although the DOJ had previously opposed the practice of collusive compensation, a practice that the compensation allowed, despite the MLS, this payment term was not the one that the DOJ objected to. Instead, the DOJ challenged the settlement provision that requires buyers and their buyer’s agent to enter into a written agreement before visiting the home.
“This offer itself raises independent concerns under the antitrust laws, which can be addressed in a number of ways,” the statement read.
The ways the DOJ proposes to fix the perceived problem are to eliminate the requirement of a buyer’s agreement or “deny that the settlement creates any immunity or defense under antitrust law.” Additionally, the DOJ writes that the court can specify “that the acceptance of the agreement does not provide a defense or protection of the provision of the consumer agreement.”
The DOJ believes that broker agreements have the potential to “restrict how brokers compete for clients.”
“They are very similar to prior restrictions among competitors that courts have found to violate antitrust laws in other practices and may restrict — rather than enhance — consumer competition among consumers,” the DOJ wrote.
Since the DOJ believes that this may cause future antitrust problems, it asks Judge Stephen Bough, when granting final approval of the settlement, to clarify “that such approval does not state that the proposed settlement prevents and prevents current antitrust violations, corrects past violations, or contains updated policies and procedures that comply with antitrust laws.”
According to the statement of interest, in ruling on the commission’s case, the Court’s task is to determine whether the proposed settlement achieves “substantial agreements in the interests of private players” in the case, but the DOJ notes that the authorization to pay does not prevent or prevent “continuing antitrust violations or resolve past violations, or in itself considers practices that are fully compliant with antitrust laws.”
The DOJ notes that approval of the settlement “does not prevent any future enforcement actions by the United States, and compliance with the proposed settlement or new NAR rules implementing that settlement does not protect against any such enforcement actions.” However, the DOJ notes that if any brokerages, agents or NAR find themselves in an antitrust suit moving forward, “they may attempt to use any findings in the Court’s decision as a defense in a future United States enforcement action.”
Final NAR settlement approval hearings, and MLSs and brokerages that have opted into NAR settlement and HomeServices of Americais scheduled to take place on Tuesday afternoon in Missouri.
In a statement, NAR said it will “continue to push for the final ratification of our agreement on November 26.”
The DOJ previously intervened in Nosalek’s commission case, and separately won a landmark case allowing the department to resume investigating NAR.
Related
Source link
