DOJ doubles down in SCOTUS argument to renew NAR probe

The Department of Justice, in seeking to reopen an antitrust probe into the National Association of Realtors, argues the group received several benefits from the investigation's earlier closure.

Feds are battling NAR's petition to the U.S. Supreme Court over the DOJ's alleged reneging of a deal to close the probe into its practices. A federal appeals court this spring sided with the government, prompting the association to take its fight to the nation's highest court. 

The Supreme Court has no deadline to determine whether it will hear the case, or dismiss it without explanation.

"We believe that the government should be held accountable when it comes to honoring the agreements into which it enters," a NAR spokesperson said in a statement Thursday.

The trade group said it would respond in court. The DOJ didn't respond to a request for comment Thursday.

Federal prosecutors in 2019 began investigating NAR's Participation Rule and Clear Cooperation Policy, and reached a settlement with the group for limited policy changes in 2020. The DOJ in January 2021 moved to renew their closed investigation, arguing they never promised in their 2020 agreement to not reopen their questioning. 

The case is unrelated to NAR's settlement and rule changes it implemented this year focused on the Participation Rule regarding real estate agent commissions. 

In October, attorneys for NAR suggested their case would have massive implications, in addressing perceived special treatment for the government to escape contractual obligations. Feds in an opposition brief Tuesday said the petition would be a poor case to challenge that question. 

"The decision below did not hold that the United States enjoys greater rights than a private party to withdraw from a contract based solely on its determination that it no longer wishes to be bound by that contract," wrote federal attorneys. 

The rebuttal reiterated the appeals court decision that feds made no commitment to refrain from opening their investigation. Attorneys in one line cite the Websters Dictionary, in stating the words "close" and "reopen" are not mutually exclusive. 

The DOJ argues NAR gained benefits from the investigation's closing, such as using the closing letter in a pending court challenge to its Clear Cooperation policy. The trade group was also relieved of its obligation to respond to two civil investigative demands, in which it would have had to produce documentation about its policies. 

Further, the DOJ cites NAR's acknowledgement that it avoided an admission of liability it would have had to agree to in a potential consent judgment. Federal attorneys didn't address whether they would pursue the same investigative demands or seek admissions of liability in a presumed reopened investigation. 

Commission rule changes have been in effect since August. NAR's $418 million settlement with home sellers was also approved last month by a federal judge. The DOJ weighed in ahead of that ruling, raising concern over new requirements for written agreements between agents and consumers.