Plaintiffs Lawyers Join with Biden and Activists to Radically Transform the Housing Industry
Exposing Democrats’ stealth attack on realtors
In October 2023, after four years of preparation, lawyers in Kansas City, Missouri brought an antitrust lawsuit to trial against the National Association of Realtors (NAR)—America’s largest voluntary professional organization with 1.5 million members—and some of NAR’s associated franchisers. The suit, shorthanded Sitzer/Burnett and brought on behalf of Missouri home sellers, accused the defendants of “conspir[ing] to inflate broker commission rates paid by home sellers.” At the end of the month, a federal jury found in the Missouri plaintiffs’ favor and awarded them $1.8 billion in damages, leading one of the plaintiff’s attorneys to file another suit asking for $100 billion in damages on behalf of plaintiffs across the country. The New York Times estimated that the Sitzer/Burnett verdict’s longer-term effects might include “realtors’ commissions . . . fall[ing] by 30 percent annually” and “eliminat[ing] 80 percent of the country’s 1.6 million real estate agents.”
Coverage from the Times and Wall Street Journal treated the verdict as apolitical—each ran in the Real Estate and Lifestyle sections, respectively—or simply an industry shift long in the making, since home buyers and sellers as well as housing experts had been complaining about realtor commission for many years.
Influential voices inside establishment politics also took this line, on the logic that the verdict would lower consumer costs and diminish NAR’s influence in Washington, D.C. One of the lead plaintiffs’ attorneys, Michael Ketchmark, articulated the generally agreed-on view when he said of the verdict: “This is one of the rare things in our country where, regardless of politics, people can come together” since “everyone agrees we have to get the National Association of Realtors out of the pockets of homeowners.”
But dig deeper, and the verdict against NAR and realtors becomes clearly political, and more “progressive,” than it may first appear—when it comes to the players involved, the policy agendas they support, and the winners as well as the losers over the long-term.
Democratic-Linked Lawyers Put Realtors in the Crosshairs
The surface indicators that politics are at work are the facts that the main lawyers in the case are linked to Democrats, sometimes in highly partisan ways, and that the case they tried is directly linked to the Biden Justice Department.
Major players among the lawyers are not just Democrats, as might be expected from plaintiff’s attorneys, but serious Democratic players with political or ideological connections to the Party. These include principals of each of the three firms serving as plaintiffs counsels whose names are listed on the class action filing: Michael Ketchmark, Eric Dirks, and Brandon Boulware.
Ketchmark is a known power player in Missouri who backed former Gov. Jay Nixon (D) as well as of Kansas City’s longtime Democratic mayor and Missouri’s former Democratic Attorney General, among diversified alliances in the Republican-shifting state. Dirks is a Democrat once appointed by Gov. Nixon to the Missouri Ethics Commission. Boulware clerked for Republican-appointed-or-elected judges two decades ago but has donated seemingly exclusively to Democrats, including Nixon and former United States Senator Claire McCaskill, since 2011. He also recently went viral on TikTok and received coverage in the Washington Post and elsewhere for taking a version of the Democratic position that transgender students should be allowed to play sports based on identity not biology in repeated testimony to Missouri’s state legislature, citing experiences with his transgender daughter.
Nor are Ketchmark et. al. the only Democratic-connected trial lawyers gearing up against NAR. In 2024, after four years preparation, a similar class action to Sitzer/Burnett will be heard in Illinois against the same defendants. One of the firms bringing the case, the Washington D.C.-based powerhouse Cohen Milstein, has brought two lawsuits against Donald Trump as well as a number of others pushing for Diversity, Equity, and Inclusion (DEI) in corporate America. It’s also known for helping create “a flourishing industry that pairs plaintiffs’ lawyers with state attorneys general”—almost all Democrats—”to sue companies” across America. A principal attorney for another firm representing the plaintiffs, as well as yet another of the firms representing the plaintiffs, have long histories of donations to Democrats.
Most telling, though, is the fact that these lawyers’ project is directly connected to the Biden White House. In November of this year, as Michael Ketchmark took a victory lap from his October win and filed a new $100 billion class-action against NAR and seven defendant brokerages, this time covering “all home sellers across the US who paid commissions over the last four years,” the real-estate news website the Real Deal reported that the Justice Department and Ketchmark were “in ‘significant and ongoing’ discussions’” regarding “NAR’s role in the ‘free market’ and the need to move the trade group out of the way.” The Real Deal also reported that this connection stretched back many months: “Ketchmark’s discussions with the Justice Departmentpredate the landmark antitrust case” and “continued through . . . trial.”
The Biden Administration Movies In
The collaboration between Ketchmark and the Biden administration wasn’t a coincidence, since the Biden DOJ had also put NAR in its crosshairs. The Biden administration’s attacks on NAR began in July 2021, out of public view, with a letter from the Justice Department withdrawing from a settlement reached between NAR and the Trump Justice Department the previous November. In that settlement, the Trump DOJ had agreed to end an investigation into NAR over inflating realtors’ commissions so long as NAR “scrap[ped] or change[d] rules in order to give prospective home buyers more information about commissions for the brokers who represented them and to eliminate any misrepresentation that the services were free.”
These were not surprising disputes for an organization like NAR, since it represents the often-suspect “middle-man” in transactions between buyer and seller; nor were the government’s requested adjustments, which tweaked rather than abolished NAR’s business model. What was surprising was the Biden Justice Department’s shift: withdrawing from the settlement “to permit a broader investigation” into NAR, then sending a letter to NAR requesting more information on its rules five days after the withdrawal, indicating that the new investigation was already underway. NAR appealed the Justice Department’s withdrawal from the settlement, and a year and a half later a Trump-appointed federal judge ruled that the Biden administration’s move “violated the ‘validly executed settlement agreement’ between the two parties.”
But the government has appealed that ruling to the U.S. Court of Appeals for the District of Columbia, on the logic that it “has an obligation to investigate potential antitrust violations that may cost American homebuyers billions of dollars each year.”
Tellingly, the Biden administration’s moves when it comes to NAR are also backed by influential “progressive” nonprofits that, more than in past White Houses, now determine government policy. For example, one Washington nonprofit that has been vocal about reforming what it calls the “congested, part-time [realty] industry,” and that is often quoted hailing the recent verdict, is the Consumer Federation of America, known for its center-left advocacy and ties to major progressive groups like the U.S. Public Interest Research Group (US-PIRG) and Ralph Nader’s Public Interest Network.
The Bigger Progressive Picture
In the broader scheme of things, these moves against NAR are arrows in the quiver of the Democratic White House when it comes to policy pushes on both independent contractors and antitrust.
Up to 90 percent of America’s realtors are independent contractors; minimizing their numbers matches the agenda of the Biden Labor Department, which is seeking to limit or disincentivize independent contracting in favor of Democratic-backed unions. It continues to do this in spite of the rapid rate of gig work’s rise and of the recent lopsided passage of a California referendum setting limits on restricting gig work—and in spite of evidence that gig workers, many of whom are women, value their status because it allows them to work part time and set their own hours.
And the White House’s moves against gig workers echo its often-dubious use of antitrust, the other issue at play in the attacks on NAR, where it is systematically working to disempower smaller or politically opposed players. Moves in this direction include pushing for an end to non-compete clauses which will affect not just large corporations but small businesses across the board; and pushing for investigations of industries like oil which don’t align with the Democratic agenda. Read in this context, the assault on NAR is part of a bigger antitrust push to give government more control.
Who Gets Hurt?
The harmful effects of the moves against realtors policies will be felt by the people protected by NAR: One of the many moral, professional, labor, and political associations which for two hundred years have lobbied for citizens’ interests against government and its associated institutions, but which have been increasingly squeezed out by Washington-based nonprofits. First in the crosshairs will be small business realties, who will be squeezed out of the realty market, as well as independent contractor realtors, the vast majority of whom are women.
But past precedent and current politics suggest that consumers will also be hurt by policies put in place in the name of helping them. This trend was most obviously the case with financial deregulation which peaked in the 1990s and early 2000s, and which drove a series of mergers in the name of cutting consumer costs that ended up giving larger, less accountable, government-backed entities more of a market stranglehold.
The negative effects of this trend peaked in the 2008 financial crisis—but are still being felt today. And it’s likely that this pattern will repeat itself when it comes to realty after the government sweeps NAR out of the way. With mobility between states increasing, consumers will still need information on local markets as well as savvy negotiators for one of their most important purchases, but if realty services are concentrated, consumers, especially less well-off ones, will have less choice and control.
They’ll also lack an associational voice like NAR which might push back against whatever progressive regulations, for example climate regulations on homes, the Biden administration and future Democrats want to attach to the buying, selling and building of houses. These are yet more reasons to fear the erosions of on-the-ground democratic safeguards like NAR which have protected citizens from government and its outgrowths for more than two centuries.
Matt Wolfson, an investigative journalist, writes at oppo-research.com and tweets @Ex__Left.
