Episode summary
The DOJ’s interest in real estate commissions — and trade groups
HousingWire Daily
· · 20 min · Hosts: Sarah Wheeler · Guests: Brooklee Han
Summary
The DOJ is still pressing into real estate commission disputes, filing a statement of interest in the Davis home-buyer commission lawsuit and arguing that policies adopted by a trade association can still amount to concerted action or conspiracy. Brooklee Han says the DOJ wants the court to apply a per se antitrust analysis rather than Howard Hanna’s requested rule-of-reason review, which would consider both procompetitive and anticompetitive effects. The bigger implication, she says, is that trade-group rules may not protect brokerages, agents, or associations from legal exposure if those rules are later challenged.
Han also says the DOJ’s posture echoes its earlier skepticism toward buyer representation agreements tied to the NAR settlement, reinforcing concerns that MLSs and Realtor associations may not provide the legal shield many industry participants assumed they did. That could push more compliance and risk management down to brokerages and individual agents.
On the Compass-Anywhere deal, Han says the lack of stronger DOJ scrutiny was a surprise given the merger’s potential to create market shares above 80% in some cities. She suggests the DOJ may be waiting to see whether a larger Compass can force changes in organized real estate, including MLSs, NAR, and Zillow.
The Compass-Zillow litigation remains unresolved, with a hearing held in November and a ruling still pending on Compass’s bid to block Zillow’s listing access standards policy. Han says that decision could shape future use of private listing networks and other off-MLS strategies.
Key takeaways
- The DOJ argued that trade-association rules can still support antitrust claims, even if brokerages say they were just following those rules, Brooklee Han says.
- Han says the DOJ wants a per se review in the Davis case, while Howard Hanna is pushing for a rule-of-reason analysis.
- The NAR settlement did not create legal protection for buyer representation agreements, and Han says the DOJ has made that point before.
- Han says Compass-Anywhere cleared without the antitrust scrutiny many expected, even though some markets could exceed 80% share after the merger.
- The Compass-Zillow lawsuit could increase use of private listing networks if Compass wins its injunction request, Han says.
Notable quotes
“policies even those promulgated by a trade association can constitute concerted action or conspiracy and violate antirust law”
“the DOJ claims that a per se analysis of um the commission rules uh which assume that a rule is inherently anti-competitive on face value should be used”
“if that's not there, you know, it's it's really it's another challenge that MLS's may have to face”
“there are some markets in some cities where a a merged compass in anywhere could have potentially over 80% of the market share”
“the DOJ said, "Hold up. We never said that clear cooperation on its own was an issue”
How the episode opens
Welcome everyone. My guest today is senior real estate reporter Brookley Han to catch us up on the DOJ's continued involvement in real estate commission lawsuits as well as their decision to let the Compass Anywhere deal go through. First, I want to thank our sponsor, Trust and Will, for making this episode possible. Brookley, welcome back to the podcast.
Thanks so much for having me. Thank you for being on. I hate to say it, but it's like um you know, I I love having you on to give us the uh the latest on what's happening with the lawsuits.
So, I hate that there are lawsuits that we we're having to be on, but I love having you on. So, so there you go. Keep us updated.
So, these of course you are our senior real estate reporter here at Housing Wire and you have famously been covering all of the lawsuits over the real estate commission um lawsuits that happened, you know, the settlements, all of that things. But there's some some other things happening now. Um we'll get to those.
The first thing I want to do is talk about one lawsuit where we see the Department of Justice has weighed in yet again. Um this when a lot of people expected like that under Trump we wouldn't have so much DOJ involvement in these lawsuits. Um and yet uh here we are.
So maybe catch us up to date on what this uh lawsuit is and why the DOJ cares and why our audience should care about it.
Yeah, absolutely. So really high level, you know, in late December, the DOJ filed a statement of interest in the Davis lawsuit, which is a home buyer commission lawsuit. So since Bernett was filed by home sellers, this is filed by uh home buyers, similar to uh the two Batten lawsuits, if you're familiar with those.
From the episode’s captions: roughly the first two minutes, lightly cleaned. Keep watching on YouTube →
Topics
- doj real estate commissions
- antitrust review
- compass-anywhere deal
- real estate commission lawsuits
- trade groups
Companies and tickers mentioned
- COMP
- Compass
- Anywhere Real Estate Group
Watch the episode
Watch “The DOJ’s interest in real estate commissions — and trade groups” on YouTube
Summary, takeaways and quote selection by Octagon. Quotes are short excerpts; the full conversation is in the episode.
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