DOJ Pushes Supreme Court To Probe NAR’s Policy

The Department of Justice believes it never said “no take backs” when it agreed to close its investigation of the National Association of Realtors in 2020.

Responding to an appeal from NAR to the Supreme Court, the DOJ claimed that in its 2020 settlement that ended its investigation into NAR’s policies, it left open the possibility that it could re-open an investigation at a later date, Inman reported.

The debate over the DOJ’s ability to look at NAR rules like the controversial Clear Cooperation Policy hinges on NAR’s belief that the DOJ entered into a binding agreement that it could not re-open an investigation into the trade group’s policies.

The two organizations have escalated things to the nation’s high court after a back-and-forth that dates back to 2019, when the DOJ initially began investigating NAR’s Participation Rule. The policy, which required listing agents to include offers of buyer agent compensation on REALTOR-affiliated MLSes has since been rescinded as part of a settlement in the Sitzer/Burnett antitrust lawsuit.

The DOJ also added CCP, which requires listing agents to add a listing to the MLS within one business day of marketing their property, to its list after the trade group adopted the policy in June 2020.

The DOJ and NAR agreed to a proposed settlement in November 2020 that ended the initial investigation, but after the change in administration, the DOJ withdrew from the settlement in July 2021 and reopened its investigation.

The Supreme Court appeal from NAR follows an April appeals court ruling in the DOJ’s favor. That decision overturned a Jan. 2023 district court decision in NAR’s favor, which came after NAR petitioned the court to disallow the DOJ’s newest investigation.

In its filing to the Supreme Court, the DOJ said it wasn’t disputing the agreement that ended its investigation in 2020, but is instead questioning “whether, in addition to agreeing to close the investigation, the Division agreed not to reopen it.”

The DOJ wrote that during negotiations it reiterated that it would not make any commitments about future investigations.

In its petition to the high court, NAR said that the appeals court decision “permitted DOJ to evade its contractual obligations based solely on its preference to do so — a result that no other litigant could obtain and no other court would permit.”

The DOJ argued that its decision to reopen its investigation did not entail a withdrawal from any type of “binding commitment.”

NAR is likely looking forward to turning the page on a year in which it has faced numerous lawsuits related to its policies and practices, investigations into its spending and organizational management and dwindling membership numbers.

Even after the trade group finally turned the corner on its settlement agreement in the Sitzer/Burnett case, the DOJ said that case’s resolution does not preclude future antitrust litigation. The DOJ pointed to the rollout of buyer’s agreements as a potentially harmful practice that could stifle competition.