The Justice Department is reopening its antitrust investigation into whether real estate agents are using illegal price-fixing to raise housing costs

The Justice Department is reopening its antitrust investigation into whether real estate agents are using illegal price-fixing to raise housing costs.

The U.S. Circuit Court of Appeals in Washington, D.C., ruled on Friday that the Department of Justice (DOJ) is not prohibited from reopening its investigation into the National Association of Realtors (NAR).

The investigation had focused on how real estate agents are compensated under a system that critics argue has led to higher home costs and more instances of illegal price-fixing.

Judge Florence Pan wrote in the opinion, "As framed by the parties, the issue before us is narrow. DOJ argues only that the plain language of the closing letter does not bar it from reopening its investigation and issuing a new CID regarding the Participation Rule and the Clear Cooperation Policy. We agree."

The NAR stated that it is "evaluating next steps."

"NAR believes that the government should be held to the terms of its contracts," said NAR spokesman Mantill Williams.

The case centered on whether the DOJ could reopen an antitrust investigation into the NAR's Cooperation and Participation Rule.

In March, the National Association of Realtors agreed to a $418 million damages settlement to eliminate its rules on commissions. In return, the DOJ agreed to close its investigation.

The settlement is pending federal court approval.

According to court documents, a DOJ letter to the NAR stated that the DOJ's antitrust division "has closed its investigation into NAR's Clear Cooperation Policy and Participation Rule. Accordingly, NAR will have no obligation to respond" to DOJ's civil investigation demands.

Judge Pan wrote, "The fact that DOJ 'closed its investigation' does not guarantee that the investigation would stay closed forever."

Referring to the DOJ letter, the opinion written by Pan added, "The plain meaning of that provision is that DOJ closed its then-pending investigation and relieved NAR of its obligation to respond to two specifically identified CIDs. We discern no commitment by DOJ -- express or implied -- to refrain from either opening a new investigation or reopening its closed 12 investigation, which might entail issuing new CIDs related to NAR's policies."

Therefore, Friday's decision allows the DOJ to reopen its NAR investigation if it chooses to do so.

In a dissenting opinion, Circuit Court of Appeals Judge Justin Walker wrote, "The Realtors agreed to give up four policies that DOJ considered anticompetitive. In exchange, DOJ promised that it had 'closed' its investigation into two other policies."

Walker stated that DOJ's agreement with the Realtors indicated that it would close its investigation.

Walker added, "The sole question is -- what did DOJ give up when it 'closed' the investigation? Nothing, if we believe DOJ. As it sees things, it could immediately reopen its investigation because anything 'closed' can be reopened at any time. No court identified by DOJ has endorsed such a reading. Nor should we. Because DOJ misreads one isolated word ('closed') to nullify what the Realtors gained from an otherwise comprehensive and comprehensible contract, I respectfully dissent."

Pan, however, said the dissent statements "overlook that NAR agreed to the term of the settlement agreement that gave DOJ the unfettered right to withdraw its consent at any time."

Friday's ruling could pave the way for the DOJ to intervene in a Missouri lawsuit in which a jury found that the NAR and others conspired to artificially increase real estate commissions. This judgment also relied on the NAR's Participation rule.