According to a filing in federal court today, the National Association of REALTORS® (NAR) is planning to appeal to the Supreme Court after a panel of judges allowed the Department of Justice (DOJ) to reopen its inquiry into several NAR policies.
NAR will file its appeal to the nation’s highest court by Oct. 10, the filing said.
At the same time, the DOJ agreed to “significantly narrow” its request for documents related to certain civil subpoenas, and will also delay requests for documents regarding the Clear Cooperation policy until after the Supreme Court rules on the forthcoming appeal.
The appeal to the Supreme Court comes after a D.C. Circuit Court panel of three judges overturned an earlier ruling by a federal judge that blocked the DOJ from reopening an investigation it had previously characterized as “closed.”
In a 2-1 decision, the appeals court ruled in April that District Court Judge Timothy Kelly had erred when he prevented the DOJ from continuing to investigate NAR’s rules. Judge Florence Pan wrote at the time that the “plain language” of the letter, as well as a “reservation of rights” clause were enough to justify that decision by the DOJ to reopen its investigation only eight months after officially closing it.
NAR argued, and has continued to argue that the DOJ had agreed to close the inquiry in 2020 after specific concessions made by NAR, and that backing out of the tacit deal set an untenable precedent for future government negotiations in similar cases.
In this latest agreement with the DOJ, NAR will produce documents related to the two original commission lawsuits—Moehrl and Burnett—by Sept. 30, and others related to Clear Cooperation 30 days after the Supreme Court rules against it (or by Nov. 12, if NAR does not in fact make the appeal).
The DOJ has previously said it does not support any sort of “cooperative compensation” between agents, but has not taken a public position on the NAR settlement. The DOJ has also intervened in several private lawsuits involving the Clear Cooperation policy.
An NAR spokesperson told RISMedia that the organization is “evaluating all remaining legal options and are committed to exploring all avenues to ensure the DOJ is held to the terms of our 2020 agreement.”
This is a developing story. Stay tuned to RISMedia for updates.
Editor’s note: this story was updated at 7:00 p.m. eastern time with comments from an NAR spokesperson.
