To all the agents in the house,
On the walls of the occasional high school gym or principal's office hangs a quote attributed to long ago basketball coach John Wooden, "Don't mistake activity for achievement."
I've thought of this quote while reporting on the Biden administration's investigation of the National Association of Realtors. Here, so far, are the U.S. Justice Department's antitrust division's activities:
* Filed an amicus brief on behalf of The PLS.Com, a luxury listings service that is suing NAR over their prohibiting of member agents from not marketing homes on the local multiple listings service, in other words, the pocket listings ban.
The brief does not say, "We think the pocket listings ban violates antitrust law." It does say that homebuyers and sellers don't need to necessarily be hurt to cause an antitrust violation - the affected party can be agents.
Perhaps buoyed by the DOJ's intervention, Top Agent Network, another private listings service, lodged an appeal in its own pocket listings ban case last week. Both lawsuits are now before the U.S. 9th Circuit Court of Appeals.
* Withdrew from the consent decree that the Trump administration reached with NAR in November 2020 in order to pursue a broader investigation into the trade group.
It's worth remembering that the consent decree declared a global peace, as it were, between DOJ-NAR.
And it only required changes in what information the MLS's publicized -- including the buyer's agent compensation -- and non-MLS members' access to lockboxes. (Inman News reported on a lawsuit filed earlier this month by Arizona broker Grady Hillis precisely over some of these issues, including his local MLS deleting information about listings without Hillis's consent.)
The Biden administration's civil investigative demand, meanwhile, peers into a different NAR corner…
* A petition NAR filed this week calls the consent decree withdrawal illegal. It also shows the DOJ's hand by noting that the federal agency demands NAR fork over information about both the pocket listings ban and the application of rules governing broker participation in MLS's.
NAR complains that the DOJ is rehashing information requests made in the Trump administration that, evidently, were not important enough to merit action at the time.
* The DOJ also intervened in a lawsuit REX filed against Zillow and NAR for how Zillow relegates listings by non-NAR agents into the "other listings" tab.
The DOJ brief simply says that NAR and Zillow cannot invoke a past, 2008 consent decree in the case. But, coincidence or no, federal judge Thomas Zilly cited DOJ intervention in a ruling this month that denied NAR and ZIllow's motion to dismiss the case.
* A July 9 executive order by Joe Biden encourages the Justice Department and Federal Trade Commission to look at unfair competition in industries from agriculture to information technology to hearing aids. The order makes glancing mention to competition in real estate services.
...That's five DOJ balls in the air right there.
One activity not undertaken, it would appear, is intervening in the lawsuit that consumers have filed against NAR, Realogy, RE/MAX, Keller Williams, and HomeServices of America in Chicago federal court.
That case challenges the NAR-imposed present split on commissions between seller and buyer agents, and is deep in the throes of each side producing records and deposing witnesses. The lawsuit also dovetails with the DOJ's mantra since July, which is that, "Americans spend tens of billions of dollars on real estate commissions each year."
So, what is the DOJ trying to achieve? Their actions indicate as much interest in the pocket listings ban as commission payments. Pursuing a "broad" investigation could make NAR nervous about where the next shoe drops. But, taken together with the administration's inquiries into vast swaths of the global economy, it also suggests that the DOJ does not know where it's going.
Agents, what do you think? What DOJ activities make you alarmed, or perhaps hopeful? And which ones do you think are just noise?
Please email me anonymously at mblake@housingwire.com.
Sincerely,
Matthew Blake
Senior Real Estate Reporter
P.S. Tomorrow RealTrends' Steve Murray and Tracey Velt are holding a conversation in our HousingWire members' only Slack channel about RealTrends' Brokerage Compensation Report. It's 11 a.m. Central. I've glanced at drafts of said report and it has some pretty intriguing information about how pay structure is changing, especially for executives.. Not an HW+ plus member? What are you thinking?! Learn more about membership here.
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