Justice Department In Talks With Sitzer/Burnett Attorney

Two of the biggest threats to the National Association of Realtors’ policies are talking behind the scenes.

The Department of Justice and Michael Ketchmark — the plaintiffs’ attorney in the recent Sitzer/Burnett case — are in “significant and ongoing” discussions, the lawyer told Inman without elaborating.

He did, however, say that department officials and think tanks were involved in the discussions and that he wanted to put NAR “out of the business of using the MLSs as a vehicle for higher commissions.”

Ketchmark’s discussions with the Justice Department predate the landmark antitrust case, but have continued through and beyond the trial, which ended last week. The defendants in the case, including NAR, were handed a penalty of $1.78 billion after the commissions trial and immediately pledged to appeal the verdict.

Ketchmark said there was “alignment” with the DOJ regarding NAR’s role in the “free market” and the need to move the trade group out of the way. Ketchmark referred to this moment as a “real opportunity for change.”

The attorney’s efforts to further combat NAR’s influence didn’t stop with the jury’s guilty vedict issued last week.

Immediately after the Sitzer/Burnett ruling, Ketchmark filed a much broader class-action lawsuit against NAR and a number of residential brokerages that weren’t part of the last case, seeking $200 billion in damages before trebling. That lawsuit encompasses nationwide home sales in the last four years.

While the DOJ didn’t comment on Ketchmark’s conversation claims, the department looms large over the various challenges to NAR and its Participation Rule, which requires listing brokers to offer compensation to buyer brokers before submitting listings to a Realtor-affiliated multiple listing service.

As the Sitzer/Burnett trial kicked off in Kansas City, the Justice Department was weighing its own case against NAR. The department has been investigating the trade group for years and appealed a ruling that the agency couldn’t reopen an investigation into a pair of NAR policies after a proposed settlement under President Donald Trump’s administration collapsed during the President Joe Biden’s administration.

— Holden Walter-Warner