To all the agents in the house,
Is the U.S. Department of Justice looking to overturn the National Association of Realtors' ban on pocket listings? Or is the DOJ throwing darts and seeing what sticks?
The DOJ stunned the normally unflappable NAR July 1, withdrawing from a consent decree the parties agreed to last November, a settlement that mostly revolved around NAR members being transparent about how buyer's agents get paid. The withdrawal, DOJ said, enables them to pursue a "broader investigation" into NAR conduct.
This week we received one detail about what this investigation might look like.
As Inman News first reported, the DOJ filed a notice in the 9th Circuit Court of Appeals on behalf of The PLS.com. Founded by ultra-luxury top producers at The Agency, PLS gave tips to members about certain upscale abodes before they went to market. Under the NAR's ban on pocket listings, effective May 2020, participation in a service like PLS is not permitted for NAR members.
PLS sued, a San Francisco federal judge dismissed the case, and PLS appealed, bringing the case to the 9th Circuit. Where things get interesting is that the DOJ filed a 44-page brief arguing...I'm not sure exactly.
Okay, it's technically on behalf of PLS, arguing that the reasoning behind a judge's decision dismissing the PLS case shows a poor understanding of antitrust law. The judge ignored "cognizable anticompetitive effects" of possible antitrust behavior, "including reductions in quality, consumer choice, innovation, and harm to the competitive process."
Agents, what I just excerpted for you is the brief's most exciting part. The rest is steeped in antitrust case law, with zero analysis about the merits of the pocket listings ban or even past NAR conduct. In other words, I don't know what the DOJ is doing here, but one speculation is that they are trying to keep this case alive as one potential investigative road leading to NAR.
NAR is not amused, sending a statement that partly read, "NAR is confident in its policies and continues to believe that this lawsuit has no legal merit and will continue to vigorously contest it."
Many of you have already conveyed unease about what the DOJ is doing here and how it will affect you, while others applauded the DOJ for taking on the powerful trade group. What do you think about this latest gambit?
And to open a real can of worms...Would you like to see the pocket listings ban revisited?
Email me anonymously at mblake@housingwire.com.
Sincerely,
Matthew Blake
Senior Real Estate Reporter
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