The case dates back to a 2020 settlement between NAR and the DOJ, and to the DOJ’s 2021 attempt to withdraw from that settlement — something NAR is trying to block.
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The National Association of Realtors on Thursday revealed that it plans to take its fight over a Department of Justice investigation to the U.S. Supreme Court.
The trade group mentioned its plan in a court filing, stating that it plans to file a petition for a writ of certiorari — or a request to review a case — to the high court by Oct. 10. The request comes about a month and a half after NAR suffered a setback in the case when an appeals court refused the organization’s request for a rehearing.
The origins of the legal fight go back to 2020, when the DOJ simultaneously announced a lawsuit against and settlement with NAR. The lawsuit focused on several NAR rules that federal officials believed were anticompetitive. The settlement was meant to increase transparency regarding commissions and to prevent claims that buyer broker services are free.
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The matter appeared to be closed at that point, but in July 2021 the DOJ withdrew from the settlement. Days later, the feds quietly resumed their probe and sent NAR a subpoena for information related to its now-defunct Participation Rule — which required listing brokers to offer compensation to buyer brokers in order to submit a listing to a Realtor-affiliated MLS — and on anti-pocket listing Clear Cooperation Policy.
However, NAR has spent the last three years fighting the DOJ’s withdraw from the settlement. In September 2021, NAR asked a court “to quash a request by the Department of Justice that reneges on the terms of a settlement agreement.”
Later, in January 2023, a federal judge sided with NAR and ruled that the DOJ’s resumed probe violated the “validly executed settlement agreement” between the two parties.
The DOJ then appealed. In April of this year, an appeals court sided with the DOJ and ruled that the investigation could resume. NAR responded by asking for a rehearing, but in July the appeals court denied that request — a turn of events that makes the Supreme Court NAR’s next step.
The legal battle between NAR and the DOJ is separate from the numerous consumer-led commission lawsuits that have challenged, and ultimately changed, the way agents do business. Those lawsuits led to a March settlement, as well as rules changes that went into effect on Aug. 17.
However, the DOJ has engaged in talks with attorneys who litigated the commission cases, and earlier this year NAR President Kevin Sears framed the federal agency as potentially more disruptive than the consumer lawsuits. The DOJ has also sent signals regarding what it would like to see happen with agent commissions.
All of which means the case that NAR now plans to take to the Supreme Court is just one component of a larger struggle the organization is having with the DOJ.
Besides revealing the intention to take the case to the Supreme Court, Thursday’s filing additional states that the DOJ has agreed to narrow its request for documents. In response, NAR has agreed to turn over some documents by Sept. 30, and will turn over others if the Supreme Court refuses to review the case or if the court rules in the DOJ’s favor.
Read NAR’s latest filing here (refresh the page if the document doesn’t appear):