NAR appeals to Supreme Court in DOJ battle
The trade organization filed an official request with the high court today, asking for a review of an antitrust case that was ostensibly closed in 2021.
The National Association of Realtors is taking its fight against the U.S. Department of Justice to the Supreme Court.
NAR filed documents with the highest court on Oct. 10 requesting a review of an ongoing case involving the DOJ. At issue is whether the DOJ has the right to reopen an antitrust investigation against the association — something the federal agency has been pursuing since 2021. A settlement in the case was previously reached in 2020.
The case has worked its way through the courts, with the U.S. Court of Appeals siding with the DOJ earlier this year. The arguments have largely come down to the wording of the 2020 agreement, which stated that the case was "closed," and judges have been wrestling with whether that implies it could never be reopened.
In an August status report, the DOJ agreed to "significantly narrow" the amount of documents it seeks, focusing on what NAR produced in the Moehrl and Sitzer/Burnett cases as well as documents about the Clear Cooperation Policy produced before July 6, 2021.
NAR makes its case: In its writ of certiorari — a formal request for a review of a lower court's decision — NAR argues that when the government makes a promise in an enforceable contract, it must honor its obligations. To change a binding contract "based solely on its preference to do so" is something "a private party could never successfully invoke," NAR attorneys stated in the filing.
The association also noted that not a single precedent has been introduced allowing the government to reopen the investigation it had agreed to close.
NAR said the Supreme Court should review this case because the previous decision "is both exceptionally wrong and exceptionally important."
"Restoring that principle (of contractual obligations) is critical because the government enters into contracts in a vast range of contexts… in which contracting partners rely on the government to keep its word," according to the filing.
NAR also said it was "alarming" that the DOJ sought to reopen the investigation based on a change of leadership at the agency after Biden took office. The settlement took place during the Trump administration and was reopened in the Biden administration.
"Although a new administration is free to change the government's policies, it is not free to repudiate the government's contracts," NAR argued in its filing.
In a statement following the filing, a spokesperson for NAR said the DOJ should stand by its previous agreement: "Appealing to the Supreme Court to hear this important case and overturn the DC Circuit's decision is important to NAR as we work on behalf of our members to fight to hold the Department of Justice to the terms of its agreement."
Other DOJ investigations: The agency is also keeping an eye on post-settlement real estate practices, including potential violations of the new rules and practices mandated by NAR's agreement.
NAR President Kevin Sears and other industry leaders met with the DOJ in June to discuss expectations and compliance going forward, with Sears noting that "we expect the DOJ to continue making inquiries into industry practices."