The current chapter of the ongoing legal battle between the National Association of Realtors (NAR) and the Department of Justice (DOJ) is coming to a close. After discussing NAR’s writ of certiorari, filed in October, on Friday, the nine justices of the Supreme Court issued an order on Monday stating that it would not hear NAR’s appeal of an April 2024 ruling reached by the U.S. Court of Appeals for the District of Columbia Circuit.
The Supreme Court denied the petition via its scheduled “order list” with no comment or reasoning as to why it reached this decision. Due to the Supreme Court’s decision, the appeals court’s ruling will be allowed to stand.
The legal battle dates back to 2018, when the DOJ opened an investigation into NAR’s now-defunct Participation Rule and its current Clear Cooperation Policy. The two parties reached an initial settlement in 2020, which required NAR to boost transparency about broker commissions and to stop misrepresenting that buyer broker services are free. In exchange for NAR’s compliance, the DOJ said it would close the investigation.
But the DOJ, under new leadership in the Biden administration, withdrew the settlement in July 2021. It stated that the terms of the agreement prevent regulators from continuing to investigate certain association rules that could harm buyers and sellers.
NAR filed a petition in September 2021 to set aside or modify the DOJ’s probes into the trade group.
In January 2023, U.S. District Court Judge Timothy Kelly ruled that the terms of the settlement were still valid and that allowing the investigation to continue would take away the benefits NAR had negotiated in the original settlement.
The DOJ appealed the ruling in March 2023. Kelly’s ruling was reversed in April 2024 by the appeal court, permitting the DOJ to reopen its investigation.
In a response to NAR’s writ of certiorari, the DOJ wrote that it did not agree to close its investigation as part of the 2020 settlement. In a reply filed in late December, NAR took issue with this and other claims the DOJ made, including that the agency still had the ability to reopen its investigation into NAR after it had agreed to close the probe as part of the settlement.
Throughout the appeals process NAR has repeatedly stated that it feels allowing the DOJ to reopen the probe sets a dangerous precedent that the government does not have to uphold its contractual promises.
For NAR, getting its petition heard was certainly a longshot, as the court typically accepts about 100 to 150 cases of the 7,000 petitions it receives each year.
NAR has not yet returned a request for comment.
