The National Association of Realtors and Department of Justice logos, and the scales of justice
Illustration by Lanette Behiry/Real Estate News; Shutterstock

DOJ pushes back on NAR’s rehearing request 

The agency wants to reopen its antitrust investigation into the association, and on June 17 said NAR’s attempt to block that move is not justified.

June 17, 2024
3 minutes

The legal back-and-forth between the U.S. Department of Justice and the National Association of Realtors continued today, with the federal agency pushing back on NAR's request for a rehearing.

At issue is whether the DOJ can reopen a years-old antitrust investigation into NAR rules and policies, and the litigation comes on the heels of NAR's settlement agreement in the separate commissions lawsuits brought by home sellers.

The 5-year timeline: The DOJ first brought the case against NAR in 2019, then settled in 2020 during the Trump administration. But "closed" doesn't always mean closed, and the following year, the DOJ began its campaign to restart the investigation. 

The arguments have centered around the wording of the agreement. It was stated that the case "has closed," and judges have been wrestling with whether that implies it could never be reopened.

In NAR's rehearing petition, the association said the decision by the U.S. Court of Appeals to allow the case to be reopened goes "where no court has gone before" and conflicted with other Supreme Court and appeals court cases.

What the DOJ said in its response: In court documents filed June 17, the DOJ said a rehearing is not warranted, adding that the decision made by the appeals court in April does not, in fact, conflict with any higher court decisions.

During initial settlement negotiations back in 2020, the DOJ said NAR sought a promise not to investigate a specific policy — NAR's Participation Rule and Clear Cooperation Policy — for 10 years. The DOJ rejected that proposal as "a nonstarter" and declined two more times when asked.

Eventually, NAR relented and asked for a narrower proposal, asking the DOJ for a letter confirming it "has closed" its investigation. That letter gave significant benefits to NAR, including in private litigation in another case, according to the DOJ.

The federal agency also noted that "has closed" was a backward-looking statement and NAR was seeking a forward-looking commitment, something the DOJ did not give.

Why it matters: The decision as to whether the DOJ can reopen its investigation into NAR could have major ramifications for the industry. In February, the DOJ filed a Statement of Interest in response to the MLS PIN settlement in the Nosalek case calling for fundamental changes to how commissions should be handled. 

Those arguments could provide a blueprint for the government's case against NAR, if the court allows the DOJ investigation to proceed. 

DOJ involvement in other cases: The government agency is expected to weigh in on the REX case, which accuses Zillow of anticompetitive behavior and originally involved NAR as well, with an amicus curiae brief to be filed this week. 

The DOJ may also be a part of a joint statement with MLS PIN in the Nosalek case. The parties are expected to file that statement by June 21.

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