On December 19th, the U.S. Department of Justice filed a 30-page Statement of Interest in the Davis v. Hanna Holdings case, and while it stops short of siding with either party, the DOJ made it clear where it stands on the broader issue of buyer agent commissions and the role of trade associations like the National Association of Realtors (NAR).
The DOJ is focused on promoting competition in real estate, and they argue that certain longstanding industry practices, particularly those driven by NAR rules and adopted through MLSs, may be keeping commissions artificially high and harming homebuyers. According to their filing, real estate broker commissions reached an estimated $170 billion in 2024, nearly 0.6% of U.S. GDP. That’s a staggering amount, and it’s part of why the DOJ says we need more scrutiny around how these commissions are structured and shared.
The DOJ challenges the idea that just because pricing rules are set by a trade association, they should be immune from antitrust laws. They cite Supreme Court precedent and push back against Hanna Holdings’ arguments that plaintiffs need to show some broader conspiracy beyond the association rules themselves. In other words, if competitors all agree to follow a rule, especially one that affects pricing, it could be illegal price fixing under antitrust law, regardless of how that rule came about.
They also go on to argue that multiple listing services (MLSs), especially those controlled by Realtor associations, play a critical role in how commissions are set and enforced. Buyers’ brokers often only show homes that pay a certain commission, and until recently, those commissions weren’t even disclosed to the buyers themselves. This, according to the DOJ, creates misaligned incentives and suppresses real competition for buyers’ representation.
Interestingly, while this case doesn’t directly challenge NAR’s role (Hanna is the named defendant), the DOJ’s comments suggest that the industry’s legacy structure, where seller-paid commissions for buyer agents are baked into MLS participation, deserves serious legal attention. They also made it clear that a trade group’s internal rules shouldn’t be treated as above the law just because they’re collectively adopted.
The takeaway here is pretty simple: the DOJ is clearly signaling its intent to keep up the pressure on real estate industry norms that stifle price competition. For brokerages, agents, and consumers, this means the debate over who pays whom, and how much, for representation in a home sale is far from over. Courts may ultimately decide if the traditional commission structure needs to be dismantled or just better disclosed and negotiated. Either way, expect more changes ahead.