DOJ Lawsuit Against NAR: From 2020 Complaint to Reopened Probe

The DOJ’s NAR lawsuit is a federal antitrust action the Department of Justice filed against the National Association of Realtors in November 2020, alleging that four NAR rules on broker commissions violated the Sherman Act. A proposed settlement collapsed in 2021 when the DOJ withdrew and issued a new subpoena covering additional NAR policies, touching off a separate court fight over whether the government could reopen its investigation. NAR lost that fight when the Supreme Court declined to hear its appeal on January 13, 2025, leaving the DOJ free to keep investigating.¹

What the DOJ Alleged in 2020

The Antitrust Division opened its civil investigation into NAR in 2018 and issued its first investigative subpoena in April 2019.² On November 19, 2020, it filed a civil complaint in the U.S. District Court for the District of Columbia and, at the same time, a proposed consent decree meant to resolve the case immediately.³

The complaint challenged four NAR rules under Section 1 of the Sherman Act. They prohibited affiliated Multiple Listing Services from telling buyers how much their broker earned in commission; allowed buyer brokers to describe their services as “free”; let buyer brokers filter out MLS listings that offered lower commissions; and restricted access to property lockboxes to brokers working through a NAR-affiliated MLS.³ According to the DOJ, these rules kept commissions artificially high, obscured what consumers were actually paying, and blocked online competitors from entering the market.⁴

Under the proposed decree, NAR agreed to repeal or modify all four rules. The same day, the DOJ sent NAR a closing letter formally ending its investigation into two other policies: the Participation Rule, which required listing brokers to offer the same commission to every buyer broker on an MLS, and the Clear Cooperation Policy, which required listings to appear on an MLS within one day of any public marketing.⁴

Why the Settlement Fell Apart

The consent decree was never finalized. On July 1, 2021, the DOJ under the Biden administration withdrew its consent and voluntarily dismissed the complaint.⁵ Five days later it served NAR with a new civil investigative demand seeking information about the very policies the 2020 closing letter had covered, including the Participation Rule and the Clear Cooperation Policy.²

NAR asked the federal district court to quash the new subpoena. The association argued that the 2020 closing letter was a binding promise to drop the investigation and that it had already begun complying with the settlement in reliance on that promise.²

The Fight Over Whether DOJ Could Reopen the Investigation

On January 25, 2023, Judge Timothy J. Kelly granted NAR’s petition and set aside the subpoena in full. He ruled the DOJ had breached a valid settlement, writing that “the government, like any party, must be held to the terms of its settlement agreements, whether or not a new administration likes those agreements.”⁶

The DOJ appealed. On April 5, 2024, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reversed the district court in a 2-1 decision.⁷ Writing for the majority, Judge Florence Pan held that the plain language of the 2020 closing letter did not stop the DOJ from later reopening its investigation.⁸

The court reasoned that closing an investigation does not, on its own terms, mean the matter stays closed forever, and that the closing letter itself contained a “no inference” clause telling NAR to draw no conclusions from the closing about future rules or policies. The panel also invoked the “unmistakability principle,” a rule of contract interpretation under which courts will not read a government contract as surrendering sovereign authority unless the waiver is unmistakable. Because the closing letter contained no explicit language ceding the government’s investigative power, the court refused to imply one.⁹ The majority noted NAR had already received real benefits from the original closing, including relief from two earlier subpoenas and the ability to cite the closing letter in separate private antitrust litigation.⁸

Judge Justin Walker dissented, calling the case a straightforward contract dispute and saying the government had “unilaterally reneged” on a reciprocal bargain in which NAR gave up four policies in exchange for the DOJ dropping its probe into two others.²

NAR sought rehearing before the full D.C. Circuit on May 20, 2024. The court denied that request on July 12, 2024.¹⁰ NAR then petitioned the Supreme Court for certiorari on October 10, 2024; the DOJ responded on December 10, arguing that its 2020 agreement had never committed the agency to ending all antitrust scrutiny of NAR. The Supreme Court denied the petition without comment on January 13, 2025.¹ NAR President Kevin Sears acknowledged the denial ended the association’s appeals on the issue.¹¹

What the DOJ Has Done in Related Commission Cases

The DOJ has been active in private antitrust litigation over the same commission practices while its own investigation moves. In February 2024, it filed a statement of interest in Nosalek v. MLS PIN in federal court in Massachusetts, urging the judge to reject a proposed $3 million settlement between home sellers and the MLS Property Information Network. The DOJ described the settlement’s central concession, lowering the required blanket offer of buyer-broker compensation from one cent to zero, as a “cosmetic change” that would not stop steering by brokers away from lower-commission listings.¹²

The DOJ went further than any private plaintiff, proposing that courts prohibit sellers from making commission offers to buyer brokers at all. Under that model, sellers would pay only their own broker, and buyers would negotiate compensation directly with their own agents, though buyers could still ask sellers to cover the cost as part of a purchase offer.¹² The DOJ pointed to the Northwest MLS in Washington state as a cautionary example, saying earlier rule changes there similar to the MLS PIN settlement had produced “no meaningful difference” in buyer-broker prices.¹³

In November 2024, the DOJ filed a statement of interest in the Sitzer/Burnett commission lawsuit itself, warning that the settlement’s requirement of mandatory written buyer-broker agreements before home tours could “limit how brokers compete for clients” and “stifle competition for buyers among buyer brokers.” The DOJ asked the court to either eliminate the buyer-agreement requirement or make clear that approving the settlement conferred no antitrust immunity on that provision.¹⁴

In December 2025, the DOJ filed another statement of interest, this time in Davis et al. v. Hanna Holdings Inc. in the Eastern District of Pennsylvania, opposing a motion to dismiss by the parent company of Howard Hanna Real Estate. The DOJ argued that trade-association rules like NAR’s are not automatically exempt from the per se rule against horizontal price fixing.¹⁵

How This Relates to the $418 Million NAR Settlement

The DOJ lawsuit is separate from the private class action that produced NAR’s $418 million settlement. That deal came out of the litigation consolidated around Burnett v. National Association of Realtors. HomeServices of America agreed to pay another $250 million, and additional brokerage settlements pushed the total past $980 million.¹⁶

Under the settlement, effective August 17, 2024, offers of broker compensation can no longer appear on any MLS. Agents working with buyers must enter into a written buyer agreement before touring a home, and those agreements must specify the amount or rate of compensation the buyer’s broker will receive.¹⁷ NAR also agreed to require seller approval for any payment to a buyer’s representative and to prohibit any rule conditioning MLS participation on offering or accepting cooperative compensation.¹⁸

Judge Stephen R. Bough of the Western District of Missouri granted final approval of the NAR and HomeServices settlements on November 27, 2024.¹⁹ The claim filing deadline passed on May 9, 2025. As of mid-2026, no funds have been distributed to class members because multiple objectors filed appeals to the Eighth Circuit and settlement funds cannot be paid until those appeals are resolved.²⁰ The DOJ was not a party to that settlement, and the D.C. Circuit and Supreme Court rulings mean the government’s investigation continues on its own track.

Where the DOJ Investigation Stands Now

Following the Supreme Court’s January 2025 denial, the DOJ’s investigation into NAR remains technically open, but the political appetite for pushing it has shifted. Gail Slater, who had been confirmed to lead the DOJ’s Antitrust Division, resigned on February 12, 2026, against what reporting described as a backdrop of an administration that “appears less interested in real estate antitrust issues.”²¹ Before her departure, Slater had reportedly sought extended review of the Compass-Anywhere merger but was overruled after the companies appealed to higher DOJ leadership.²²

On the Clear Cooperation Policy specifically, one of the two rules the reopened investigation covered, the DOJ told the court in a March 2025 filing in the MLS PIN case that it “has not taken a position” on whether the policy standing alone is anticompetitive, and pushed back on industry claims to the contrary as “misleading and out of context.”²³ NAR ultimately kept the policy in place, adding a supplemental framework in March 2025 that lets sellers delay broader marketing while still filing with the MLS.²⁴

1
Real Estate News. Supreme Court Denies NAR Request to Review DOJ Case
2
U.S. Court of Appeals for the D.C. Circuit. National Association of Realtors v. United States, No. 23-5065
3
U.S. Department of Justice. Justice Department Files Antitrust Case and Simultaneous Settlement Requiring National Association of Realtors to Repeal and Modify Rules
4
Manatt, Phelps & Phillips. NAR v. DOJ: D.C. Circuit Bolsters Antitrust Division
5
U.S. Department of Justice. U.S. v. National Association of Realtors
6
Quinn Emanuel. Client Alert: Federal Court Sets Aside Civil Investigative Demand
7
The Hill. Court Grants DOJ Authority to Reopen Realtors Probe
8
Justia. National Association of Realtors v. United States, No. 23-5065
9
U.S. Court of Appeals for the D.C. Circuit. National Association of Realtors v. United States, No. 23-5065
10
Louisiana Realtors. NAR D.C. Circuit Petition Update
11
National Association of Realtors. Supreme Court Denies NAR Cert Petition
12
Real Estate News. DOJ to Court: Buyers Need to Set Their Agents Compensation
13
HousingWire. DOJ Advocates for Prohibition of Cooperative Compensation in Nosalek Commission Lawsuit
14
HousingWire. DOJ Comes Out Against NAR Commission Lawsuit Settlement
15
Real Estate News. DOJ Weighs In on Another Commissions Lawsuit
16
ClassAction.org. Real Estate Broker Commissions Settlement
17
National Association of Realtors. NAR Settlement FAQs
18
Cohen Milstein. Moehrl v. National Association of Realtors, et al.
19
CourtListener. Sitzer v. National Association of Realtors, 4:19-cv-00332
20
Real Estate Commission Litigation. Burnett Settlement
21
RISMedia. DOJ Enforcer Out on Real Estate Issues
22
American Economic Liberties Project. Economic Liberties Calls for Congressional Investigation
23
Real Estate News. DOJ Calls Out Misleading Claims About Its Take on Clear Cooperation
24
National Association of Realtors. NAR Introduces New Flexibility for Sellers While Retaining Clear Cooperation Policy