The National Association of Realtors is thinking of taking its fight with the Justice Department to the U.S. Supreme Court.
The trade association intends to file its petition to the nation's highest court by Oct. 10, according to a joint status report with the DOJ filed Thursday in a federal appeals court. The petition, which hasn't yet been filed, would be the latest counterpunch in a years-long battle with feds over a DOJ probe into NAR's commission practices.
"We are 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," said Mantill Williams, NAR vice president of communications, in a statement.
The DOJ declined to comment Friday.
A Circuit Court of Appeals in April ruled the DOJ could reopen its antitrust investigation into the association after the sides agreed to a settlement to close the case in 2020. President Joe Biden's administration withdrew from the Trump-era settlement eight months after it was reached. NAR has opposed the DOJ's reopening efforts at every turn, unsuccessfully asking the federal appeals court for a rehearing of the case.
The federal investigation is unrelated to changes NAR enacted Aug. 17 following a $418 million settlement with consumers in March to address alleged anti-competitive compensation rules. Feds Thursday said they agreed to narrow the documents they're seeking related to the court cases behind that settlement.
The DOJ meanwhile is pausing its requests for documents from NAR around its scrutinized clear cooperation policy, until a Supreme Court outcome, including whether it'll hear the case at all. If NAR doesn't appeal to the Supreme Court, it'll have to produce those documents in November, according to the joint filing.
The Justice Department has not formally weighed in on the Sitzer/Burnett case where the settlement was produced, but has shared its concerns in another related lawsuit in Massachusetts. There, a DOJ attorney said commission compensation offers shouldn't be made anywhere.
Today, offers of compensation for real estate agents can't be made on Multiple Listing Services, although they can be negotiated off the MLS. Agents are also required to enter into written agreements with customers.
