In 2019, DOJ’s Antitrust Division opened an investigation into practices and policies of the National Association of Realtors (NAR) — the trade and lobbying group representing most of the nation’s real estate agents, brokers, and other professionals, and defendant in several earlier antitrust cases. Among the practices DOJ sought to investigate were NAR’s “clear cooperation policy,” which requires members to list all active listings with the Multiple Listing Service (MLS), and its “participation rule.” DOJ entered into settlement talks, and, in November 2020, filed a Stipulation and Proposed Final Judgment — which did not reference the clear cooperation or participation rules. In a move applauded by consumer advocates, the new administration in 2021 withdrew that proposed judgment before it was entered by the court. When DOJ issued new civil investigative demands to NAR, NAR sued in DC district court, arguing that investigation into those policies was actually barred by the parties “settlement agreement.”
In an opinion issued today, the district court ruled in NAR’s favor. Even though there was no written agreement between DOJ and NAR by which DOJ agreed to end its investigation into these policies, the district court reasoned that DOJ officials 2020 “commitment” to “close” the investigation must be read into the written documents and thus barred further investigation.
The district court did not grapple with the consequences that could result from allowing laws to remain unenforced because of an anti-regulatory administration’s informal agreements on its way out the door.