DOJ to Supreme Court: Ending NAR probes forever a ‘nonstarter’
The National Association of Realtors and Department of Justice reached a deal in 2020, and since then have fiercely debated whether the case can be reopened.
The Department of Justice says it has every right to reopen an antitrust investigation into the National Association of Realtors, despite reaching a settlement with NAR in 2020.
We've heard this before from the DOJ — but this week, they said it to the Supreme Court. The agency filed a brief with the high court on Dec. 10 in response to NAR's October "writ of certiorari," a formal request for review of a lower court's decision.
How we got here: In 2019, the DOJ opened an antitrust investigation into policies including Clear Cooperation, which has become a hot topic, and the Participation Rule, which had required brokers to include a compensation amount for each listing. The latter has been made moot by the NAR commissions lawsuit settlement.
A year after settling with NAR in 2020, the DOJ sought to reopen its investigation, touching off the dispute now before the nation's highest court.
NAR pushed back, but an appeals court sided with the government in April. That's the decision NAR wants the Supreme Court to review, and when the association filed its appeal in August, it said it is "committed to exploring all avenues to ensure the DOJ is held to the terms of our 2020 agreement."
The DOJ says it made no promises: The Department of Justice, referring to itself as "the Division," said it repeatedly told NAR that it could not promise it would never take up antitrust issues again. "The Division explained that it viewed such a commitment as 'a nonstarter'" that would violate longstanding policies, the filing stated.
A matter of semantics? The settlement agreement says the case was closed — but does that mean it can never be reopened? That's up to the judges.