The U.S. Court of Appeals for the District of Columbia Circuit has lifted restrictions that previously prevented the U.S. Justice Department (DOJ) from investigating potential anticompetitive behavior by the National Association of Realtors (NAR). This decision reinforces the DOJ's authority to scrutinize NAR's Participation Rule and Clear Cooperation Policy in an effort to safeguard competition.

As per a prior DOJ press release, the department lodged a complaint and suggested settlement on Nov. 19, 2020. The complaint alleged that NAR had established commission-related rules and policies that stifled competition in residential real estate services. The proposed settlement necessitated NAR to repeal and amend its rules to enhance transparency on commissions for home buyers. It also mandated NAR to eliminate rules that prohibit filtering multiple listing services (MLS) listings based on the extent of buyer broker commissions.

In a July 2021 press release, it was revealed that the DOJ withdrew its consent to the proposed settlement with NAR after concluding that it would not sufficiently protect the department’s rights to investigate other conduct by NAR potentially affecting competition in the real estate market.

According to information released about the appeal court’s decision, the DOJ stated that NAR’s rules and policies influence millions of real estate brokers and agents as well as numerous American home buyers and sellers. Referencing industry data, the DOJ indicated that home buyers and sellers paid over $85 billion in residential real estate commissions in 2023.

"Real-estate commissions in the United States greatly exceed those in any other developed economy, and this decision restores the Antitrust Division’s ability to investigate potentially unlawful conduct by NAR that may be contributing to this problem," said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division in his announcement regarding the appeals court's verdict.