It’s Friday afternoon, and posting has been very light as I’ve been non-stop traveling. But I wanted to get this out because it came up in conversation earlier today with an MLS executive, and thought that many of you probably were wondering the same thing.
One, the Department of Justice really doesn’t like it when NAR uses the 2008 Consent Decree as any kind of a shield for any kind of a rule. NAR has done this in Moehrl, in Sitzer, and now in REX and in all three instances, the DOJ went out of its way to file a Statement of Interest telling the judge that the DOJ in no way shape or form approved any NAR rule or policy.
Note further that the DOJ did this in both the supposedly free-market Trump Administration and its supposed antithesis the Biden Administration. Political winds do not change the DOJ’s institutional dislike of having the Consent Decree used to justify anything that NAR does.
Two, the continued insistence in these filings that the DOJ never analyzed NAR’s rules or policies for antitrust compliance is… meaningful.
Contrary to NAR’s argument, therefore, those other policies, including the supposedly similar search policy that appears in an attachment to the 2008 consent decree as part of NAR’s IDX Policy, were in no sense analyzed and found consistent with antitrust laws. (Statement of Interest, p. 4)
It’s meaningful because it signals that the FTC intends to engage in some kind of a full-court press investigation against NAR and its rules… especially as the FTC was ordered by the President to do exactly that in a recent Executive Order.
Expect the investigation to commence soon. Expect it to be invasive and intrusive. And expect hearings not just on the rules being questioned by the likes of Moehrl, Sitzer, Leeder and REX but on all NAR rules. I don’t think anything is safe now, including things like MLS of Choice, REALTOR-only MLS, Principal REALTOR rule, etc. etc. No rule is safe.
That’s my take on what’s headed our way, which I wrote about in DOJ Ends the Armistice, Part 2: The Big Guns – Regulation.
And three, in case you were unclear about how the United States of America felt about the National Association of REALTORS, it has now made those feelings clear through the Department of Justice. That feeling can be summarized by this epic speech from Pulp Fiction:
“You will know my name is The Lord when I lay my vengeance upon thee.”
This laying down of vengeance is inevitable because the Government, like Yahweh of the Old Testament, is a jealous god. It will not tolerate a separate power that claims to govern and rule over an industry as important as housing and real estate. And it will especially not tolerate a separate power that resists the Will of the Almighty Government, as NAR has done recently. I have no proof or evidence, but my feeling is that some of the career lawyers and regulators at the DOJ and the FTC are kinda like, “Just who the hell do these REALTORS think they are?” and will seek to make an example out of upstarts like NAR pour encourager les autres.
There is a part of me — the lawyer part that enjoys the competitive aspects of lawfare — that finds the spectacle fascinating. The second most powerful lobby on Capitol Hill going up against the DOJ and the FTC over the question of Who Shall Rule the real estate industry is a battle for the ages. Now we get to see if the REALTOR Party really has some muscle or if it was all an emperor’s new clothes situation.