NAR will appeal DOJ probe to Supreme Court

In a court filing on Thursday, the National Association of Realtors said it will appeal the D.C. Circuit Court of Appeals ruling that the Department of Justice could reopen its investigation into the trade group. 

The decision to appeal to the Supreme Court comes after the appeals court denied NAR’s request for a rehearing in July. 

The appeals court’s decision overturned the ruling of District Court Judge Timothy Kelly, who ruled in January 2023 that the terms of an earlier settlement reached by the the DOJ and NAR ending the department’s investigation into the trade group were still valid, and allowing the investigation to continue would take away the benefits NAR had negotiated in the original settlement. 

The DOJ appealed the ruling in March 2024 and filed its first brief in early June.

The two parties reached the initial settlement in 2020, ending the DOJ’s investigation into NAR’s listing and agent compensation policies. The settlement proposed at the time included requirements for 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.

However, the DOJ, under new leadership in the Biden administration, withdrew the settlement in July 2021, stating that the terms of the agreement prevent regulators from continuing to investigate certain association rules that they feel harm buyers and sellers.

NAR filed a petition in September 2021 to set aside or modify the DOJ’s probes into the trade group.

According to the filing, NAR intends to file its writ of certiorari to the Supreme Court by October 10, 2024. Additionally, the filing notes that the DOJ has agreed to “significantly narrow the documents it seeks in response” to its civil investigative demand. 

In response, the filing details that NAR will produce documents related to the Moehrl and Sitzer/Burnett commission lawsuits by Sept. 30, 2024, and other document related to its Clear Cooperation Policy, which included the Participation Rule at the center of the commission lawsuits, a month after at Supreme Court rules against NAR or by Nov. 12, 2024, if NAR does not file its writ of certiorari.

In filings in the Nosalek suit, which the DOJ became involved in, in late September 2023, the department has made it clear that it does not support cooperative compensation and that it does not want to see offers of buyer broker compensation “anywhere.”