Editor’s Note: This story was updated at 12:05 p.m. on Monday, Jan. 13 with a comment from NAR.
The National Association of REALTORS®’ (NAR) appeal to the Supreme Court to block the Department of Justice’s (DOJ) investigation was denied today without comment, allowing law enforcement to continue with its inquiry into NAR rules and practices. The Supreme Court has yet to share its reasoning in the decision.
NAR filed the writ of certiorari appeal back in October, requesting for the Supreme Court to block the DOJ’s antitrust investigation into the organization based “on issues of critical legal and economic significance.”
“The D.C. Circuit’s divided decision is both exceptionally wrong and exceptionally important,” NAR stated in its filing. “(T)he majority’s position permitted the 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.”
This investigation was previously agreed to be closed by the DOJ in 2020, however it was reopened a matter of months later. NAR then sued, with a district court judge agreeing with the organization that the DOJ “could not unilaterally restart its investigation”—however an appeals court overturned this ruling in April 2024.
NAR’s main argument against the investigation relates to this chain of events, alleging that the DOJ is breaching its agreement to end the investigation, since it had “publicly” agreed to it in 2020. In addition, NAR argued it has already completed some of the requirements of the DOJ’s proposed order in relation to the organization’s Participation Rule and Clear Cooperation policy.
The DOJ defended its investigation in December, after sending a lawyer to represent its objections at the final approval hearing of NAR’s Burnett settlement in November. Though it has seemingly evolved over the intervening years, the DOJ has indicated it is honing in on the Clear Cooperation policy, which NAR CEO Nykia Wright recently addressed in a conversation with RISMedia as the policy remains controversial among brokers.
In the brief filed, DOJ lawyers stated, “The court of appeals in this case determined that the government had made no commitment to refrain from reopening an antitrust investigation that the government had closed. That decision is correct, and it does not conflict with any decision of this Court or another court of appeals.”
The DOJ also noted it did not tell NAR it was going to permanently close its investigation into the organization, and therefore is not breaching any agreement.
In response to the ruling, an NAR spokesperson commented the following: “While the Supreme Court ultimately decided against reviewing the lower court’s decision, NAR remains committed to taking every possible step to fight for the interests of our members and the consumers they serve.”
