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NAR Appeals Circuit Court Decision, Takes DOJ Fight to Supreme Court

By  |  September 1, 2024

The National Association of Realtors (NAR) announced on Thursday its decision to appeal to the Supreme Court, following a ruling by the D.C. Circuit Court of Appeals that allows the Department of Justice (DOJ) to reopen its investigation into the trade group. This decision comes after the appeals court denied NAR’s request for a rehearing in July.

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    Per HousingWire, the appellate court’s ruling reversed an earlier decision by District Court Judge Timothy Kelly. In January 2023, Judge Kelly had determined that the terms of a prior settlement between the DOJ and NAR, which concluded the department’s investigation into the group’s practices, were still valid. He argued that reopening the investigation would undermine the benefits NAR had secured in that settlement.

    The DOJ, however, challenged this ruling in March 2024, filing its initial brief in June. The two parties had originally reached a settlement in 2020, which aimed to conclude the DOJ’s investigation into NAR’s policies on property listings and agent compensation. Under the terms of that agreement, NAR was required to enhance transparency around broker commissions and to cease any misrepresentation that buyer broker services were free. In return for NAR’s compliance, the DOJ agreed to close its investigation.

    However, under the Biden administration’s leadership, the DOJ withdrew from the settlement in July 2021. The department argued that the agreement restricted regulators from probing certain association rules that they believed were detrimental to home buyers and sellers. In response, NAR filed a petition in September 2021, seeking to either set aside or modify the DOJ’s renewed investigations.

    Related: Federal Appeals Court Allows DOJ to Reopen Antitrust Probe of National Association of Realtors

    According to HousingWire, NAR’s latest court filing indicates that the trade group plans to submit its writ of certiorari to the Supreme Court by October 10, 2024. The filing also notes that the DOJ has agreed to significantly narrow the scope of documents it seeks in its civil investigative demand.

    Additionally, NAR has committed to producing documents related to the Moehrl and Sitzer/Burnett commission lawsuits by September 30, 2024. Documents pertaining to NAR’s Clear Cooperation Policy, which includes the controversial Participation Rule at the center of the commission lawsuits, are expected to be provided by November 12, 2024, or a month after a potential Supreme Court ruling against NAR.

    Furthermore, in recent filings related to the Nosalek case, where the DOJ became involved in late September 2023, the department has made its stance clear. It opposes cooperative compensation and has expressed a desire to eliminate offers of buyer broker compensation entirely.

    As the legal battle escalates, all eyes will be on the Supreme Court to see how it responds to NAR’s appeal and the broader implications it may have on the real estate industry.

    Source: HousingWire