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D.C. appeals court greenlights Justice Department investigation into NAR

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A federal court cleared the way Friday for the Justice Department to reopen an antitrust probe into the National Association of Realtors and its rules regarding home sale commissions.

In a 21-page opinion, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower-court decision that the Justice Department was barred from reopening its investigation because of complications arising out of a 2020 settlement the government eventually withdrew from. The appeals court sent the matter back to the lower court, where Realtors could appeal to the full D.C. Circuit or attempt to find a new angle to challenge the investigation.

The decision represents the latest blow for the powerful real estate group, which agreed in March to pay $418 million to resolve several class-action lawsuits alleging it conspired to inflate commissions. The NAR, which denies any wrongdoing, also said it would revise a compensation structure that typically carves out 5 to 6 percent of a home’s sale price for agents.

While lawyers for the plaintiffs expect the lawsuit settlement — if approved in federal court — to lower commissions, it would not preclude the Justice Department from further investigating the Realtors association, which counts 1.5 million members.

The Justice Department, which often does not publicly confirm ongoing investigations, did not specifically say it would restart the probe of the Realtors group. But Justice officials went out of their way to note the implications of Friday’s ruling.

“Real-estate commissions in the United States greatly exceed those in any other developed economy, and this decision restores the Antitrust Division’s ability to investigate potentially unlawful conduct by NAR that may be contributing to this problem,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division.

The Realtors association said Friday that it was “reviewing today’s decision and evaluating next steps.” Pointing to a dissenting opinion by U.S. District Judge Justin R. Walker, the association added that it “believes that the government should be held to the terms of its contracts.”

Walker wrote that the Justice Department should be precluded from reopening its investigation because the federal government previously said in a letter that it had closed the matter.

Scrutiny on the commissions system comes as housing affordability weighs on consumers. In the last quarter of 2023, the median U.S. sales price was $417,700, according to the Federal Reserve of St. Louis. Under a standard 6 percent commission, more than $25,000 would be earmarked for agents. In 2023, Americans paid close to $80 billion in commissions at a time when financing and other costs were elevated. As of the third week in March, a 30-year fixed mortgage rate hovered near 7 percent, close to the 20-year high reached in October.

At issue in the D.C. Circuit was whether the Justice Department’s antitrust division could reopen an inquiry it settled with the NAR in November 2020 concerning rules that, the government alleged, “illegally restrained competition in residential real estate services.” Months after the probe officially closed, the Justice Department withdrew from the settlement, which it said prevented the government from further investigating the trade group’s commissions rules. When the Justice Department sought to continue its investigation, the association petitioned to block it.

In January 2023, U.S. District Judge Timothy J. Kelly ruled in favor of the NAR. The Justice Department appealed, leading to Friday’s ruling.

NAR rules have called for sellers’ agents to include compensation offers in listings on real estate databases known as multiple listing services (MLS). Buyers’ and sellers’ agents have traditionally split the compensation, typically 5 to 6 percent of the home-sale price and funded entirely by the seller.

Critics contend the arrangement pays buyers’ agents far more than the value of their services. Such agents have played a smaller role in transactions in recent years with the rise of platforms such as Zillow that let users search for homes on their own.

The issue burst into the spotlight in October, when a Kansas City, Mo., jury found that the NAR and several major brokerages conspired to keep commissions artificially high, awarding a class of home sellers $1.8 billion in damages. A similar case in Illinois had been moving toward trial when the NAR announced in March that it agreed to settle both cases. The trade group said it would modify its rules to limit cooperation between buyers’ and sellers’ agents regarding compensation.

Although the Justice Department declined to comment on that settlement, it still may have a reason to launch an investigation if the proposed settlement does not foster price competition, according to Ryan Tomasello, an analyst at Keefe, Bruyette & Woods who covers real estate technology.

The settlement proposes changes to prevent agents on either side of the transaction from coordinating on commissions, which experts say leads to price fixing. One proposal would prohibit listing agents from making compensation offers through the MLS, which allows buyers’ agents to easily see what commission rate is being offered and steer their clients toward properties with high compensation.

But Tomasello said it includes exceptions that would keep compensation offers visible to buyers’ agents in some cases.

“In our view, so long as listing agents can continue to make and advertise compensation offers to buyer agents, steering incentives will still exist,” Tomasello said in a research note.

The Justice Department took a similar position in February when it intervened in a Massachusetts commissions case that involves an independent MLS with similar compensation rules as the NAR.

In a filing disagreeing with the terms of the proposed settlement in Massachusetts, the federal government noted that as “long as sellers can make buyer-broker commission offers, they will continue to offer ‘customary’ commissions out of fear that buyer brokers will direct buyers away from listings with lower commissions — a well-documented phenomenon known as steering.”

Rachel Weiner contributed to this report.

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There’s a key change coming to 401(k) catch-up contributions in 2025

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Many Americans face a retirement savings shortfall. However, setting aside more money could get easier for some older workers in 2025.

Enacted by Congress in 2022, the Secure Act 2.0 ushered in several retirement system improvements, including updates to 401(k) plans, required withdrawals, 529 college savings plans and more.

While some Secure 2.0 changes have already happened, another key change for “max savers,” will begin in 2025, according to Dave Stinnett, Vanguard’s head of strategic retirement consulting.

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Some 4 in 10 American workers are behind in retirement planning and savings, according to a CNBC survey, which polled roughly 6,700 adults in early August.

But changes to 401(k) catch-up contributions — a higher limit for workers age 50 and older — could soon help certain savers, experts say. Here’s what to know.

Higher 401(k) catch-up contributions

Employees can now defer up to $23,000 into 401(k) plans for 2024, with an extra $7,500 for workers age 50 and older.

But starting in 2025, workers aged 60 to 63 can boost annual 401(k) catch-up contributions to $10,000 — or 150% of the catch-up limit — whichever is greater. The IRS hasn’t yet unveiled the catch-up contribution limit for 2025.  

“This can be a great way for people to boost their retirement savings,” said certified financial planner Jamie Bosse, senior advisor at CGN Advisors in Manhattan, Kansas.

An estimated 15% of eligible workers made catch-up contributions in 2023, according to Vanguard’s 2024 How America Saves report.

Those making catch-up contributions tend to be higher earners, Vanguard’s Stinnett explained. But they could still have “real concerns about being able to retire comfortably.”

More than half of 401(k) participants with income above $150,000 and nearly 40% with an account balance of more than $250,000 made catch-up contributions in 2023, the Vanguard report found.

Roth catch-up contributions

Another Secure 2.0 change will remove the upfront tax break on catch-up contributions for higher earners by only allowing the deposits in after-tax Roth accounts.

The change applies to catch-up deposits to 401(k), 403(b) or 457(b) plans who earned more than $145,000 from a single company the prior year. The amount will adjust for inflation annually. 

However, IRS in August 2023 delayed the implementation of that rule to January 2026. That means workers can still make pretax 401(k) catch-up contributions through 2025, regardless of income.

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Holiday shoppers plan to spend more, while taking on debt this season

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Increase in consumer holiday spending expected this year, says Mastercard's Michelle Meyer

Americans often splurge on gifts during the holidays.

This year, holiday spending from Nov. 1 through Dec. 31 is expected to increase to a record total of $979.5 billion to $989 billion, according to the National Retail Federation.

Even as credit card debt tops $1.14 trillion, holiday shoppers expect to spend, on average, $1,778, up 8% compared to last year, Deloitte’s holiday retail survey found.

Meanwhile, 28% of holiday shoppers still haven’t paid off the gifts they purchased for their loved ones last year, according to another holiday spending report by NerdWallet

How shoppers pay for holiday gifts

Heading into the peak holiday shopping season, 74% of shoppers plan to use credit cards to make their purchases, NerdWallet found.

Another 28% will tap savings to buy holiday gifts and 16% will lean on buy now, pay later services. NerdWallet polled more than 1,700 adults in September.  

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Buy now, pay later is now one of the fastest-growing categories in consumer finance and is only expected to become more popular in the months ahead, according to the most recent data from Adobe. Adobe forecasts BNPL spending will peak on Cyber Monday with a new single-day-record of $993 million.

However, buy now, pay later loans can be especially hard to track, making it easier for more consumers to get in over their heads, some experts have cautioned — even more than credit cards, which are simpler to account for, despite sky-high interest rates.

The problem with credit cards and BNPL

To be sure, credit cards are one of the most expensive ways to borrow money. The average credit card charges more than 20% — near an all-time high.

Alternatively, the option to pay in installments can make financial sense, especially at 0%. 

And yet, buy now, pay later loans “are just another form of credit, disguised as something for free,” said Howard Dvorkin, a certified public accountant and the chairman of Debt.com.

The more BNPL accounts open at once, the more prone consumers become to overspending, missed or late payments and poor credit history, other research shows.

If a consumer misses a payment, there could be late fees, deferred interest or other penalties, depending on the lender. In some cases, those interest rates can be as high as 30%, rivaling the highest credit card charges. 

“This is just another way for financers to put their hands in the pocket of consumers,” Dvorkin said. “It’s a trojan horse.”

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Here’s why the U.S. retirement system isn’t among the world’s best

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The U.S. retirement system doesn’t get high marks relative to other nations.

In fact, the U.S. got a C+ grade and ranked No. 29 out of 48 global pension systems in 2024, according to the annual Mercer CFA Institute Global Pension Index, released Tuesday. It analyzed both public and private sources of retirement funds, like Social Security and 401(k) plans.

A similar index compiled by Natixis Investment Management puts the U.S. at No. 22 out of 44 nations this year. Its position has declined from a decade ago, when it ranked No. 18.

“I think [a C+ grade] would describe a rating where there is a lot of room for improvement,” said Christine Mahoney, global retirement leader at Mercer, a consulting firm.

The Netherlands placed No. 1, followed by Iceland, Denmark and Israel, respectively, which all received “A” grades, according to Mercer. Singapore, Australia, Finland and Norway got a B+.

Fourteen nations — Chile, Sweden, the United Kingdom, Switzerland, Uruguay, New Zealand, Belgium, Mexico, Canada, Ireland, France, Germany, Croatia and Portugal — got a B.

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Of course, retirement systems differ since they address a nation’s unique economies, social and cultural norms, politics and history, according to the Mercer report. However, there are certain traits that can generally determine how well older citizens fare financially, the report found.

The U.S. system is often referred to as a three-legged stool, consisting of Social Security, workplace retirement plans and individual savings.

The lackluster standing by the U.S. in the world is largely due to a sizable gap in the share of people who have access to a workplace retirement plan, and for the ample opportunities for “leakage” of savings from accounts before retirement, Mahoney said.

Employers aren’t required to offer a retirement plan like a pension or 401(k) plan to workers. About 72% of workers in the private sector had access to one in March 2024, and about half (53%) participated, according to the U.S. Bureau of Labor Statistics.  

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“The people who have [a plan], it’s probably pretty good on average, but you have a lot of people who have nothing,” Mahoney said.

By contrast, some of the highest-ranked countries like the Netherlands “cover essentially all workers in the country,” said Graham Pearce, Mercer’s global defined benefit segment leader.

Additionally, top-rated nations generally have greater restrictions relative to the U.S. on how much cash citizens can withdraw before retirement, Pearce explained.

American workers can withdraw their 401(k) savings when they switch jobs, for example.

About 40% of workers who leave a job cash out “prematurely” each year, according to the Employee Benefit Research Institute. A separate academic study from 2022 examined more than 160,000 U.S. employees who left their jobs from 2014 to 2016, and found that about 41% cashed out at least some of their 401(k) — and 85% completely drained their balance.

Employers are also legally allowed to cash out small 401(k) balances and send workers a check.

While the U.S. might offer more flexibility to people who need to tap their funds in case of emergencies, for example, this so-called leakage also reduces the amount of savings they have available in old age, experts said.

“If you’re someone who moves through jobs, has low savings rates and leakage, it makes it difficult to build your own retirement nest egg,” said David Blanchett, head of retirement research at PGIM, Prudential’s investment management arm.

Social Security is considered a major income source for most older Americans, providing the majority of their retirement income for a significant portion of the population over 65 years old.

To that point, about nine out of 10 people aged 65 and older were receiving a Social Security benefit as of June 30, according to the Social Security Administration.

Social Security benefits are generally tied to a worker’s wage and work history, Blanchett said. For example, the amount is pegged to a worker’s 35-highest years of pay.

While benefits are progressive, meaning lower earners generally replace a bigger share of their pre-retirement paychecks than higher earners, Social Security’s minimum benefit is lesser than other nations, like those in Scandinavia, with public retirement programs, Blanchett said.

“It’s less of a safety net,” he said.

“There’s something to be said that, as a public pension benefit, increasing the minimum benefit for all retirees would strengthen the retirement resiliency for all Americans,” Blanchett said.

That said, policymakers are trying to resolve some of these issues.

For example, 17 states have established so-called auto-IRA programs in a bid to close the coverage gap, according to the Georgetown University Center for Retirement Initiatives.

These programs generally require employers who don’t offer a workplace retirement plan to automatically enroll workers into the state plan and facilitate payroll deduction.

A recent federal law known as Secure 2.0 also expanded aspects of the retirement system. For example, it made more part-time workers eligible to participate in a 401(k) and raised the dollar threshold for employers to cash out balances for departing workers.

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