The US Department of Justice (DOJ) doesn’t play around when it comes to the National Association of Real Estate Agents (NAR), who filed a petition US Supreme Court to look for an appeals court ruling that would allow the DOJ to reopen its investigation into the trade group.
In a document filed Wednesday, the DOJ said it has made clear that it is leaving open the possibility of reopening its investigation into NAR, and that it should therefore be allowed to do so.
The filing was in response to NAR’s writ of certiorari filed in the Supreme Court in October. In the petition, NAR asked the Supreme Court to review a decision of the trial court United States Court of Appeals for the District of Columbia Circuit allowing the DOJ to reopen an investigation into NAR’s rules – including the now-defunct Participation Rule and the current Clear Cooperation Policy.
According to the DOJ’s most recent filing, the agency agreed to conclude its investigation in 2020.
“It is undisputed that in 2020 the Department agreed to ‘close’ its investigation of two of petitioner’s rules, the Participation Rule and the Clear Cooperation Policy,” the filing said. “The contentious question is whether the Department not only agreed to close the investigation, but also agreed not to reopen it.”
The question of whether the DOJ agreed not to reopen the investigation has become a point of contention, and the ensuing legal battle has led NAR to petition the Supreme Court. According to the DOJ, nowhere in the 2020 settlement negotiations with NAR did it agree not to reopen the investigation.
“During the negotiations, the Department repeatedly informed petitioner that even if the Department agreed to conclude an investigation, it could not commit to refraining from investigating petitioner’s rules in the future,” wrote the DOJ.
The DOJ’s investigation into NAR’s policies began in 2018, when the agency claimed to have received a complaint from an industry participant. In November 2020, the DOJ and NAR submitted a settlement in which the DOJ agreed to close its investigation. But in July 2021, the DOJ, under the Biden administration, reopened the investigation into the two policies. This led to a lawsuit between the parties. A court initially ruled in favor of NAR January 2023but an appeals court overturned the decision in April 2024.
In its writ filed in October, the trade group alleged that the appeals court ruling “allowed DOJ to evade its contractual obligations based solely on its preference to do so — a result that no other litigant could obtain and no other court would allow. ”
However, the DOJ doesn’t see things that way. In its filing, the DOJ claims that the appeals court invoked the “principle of unmistakability,” which holds that a contract should not be construed as “ceding a sovereign right of the United States unless the government unmistakably waives of that right.’”
“The Court of Appeals in this case found that the government made no commitment to refrain from reopening an antitrust investigation that the government had closed,” the DOJ wrote. “That decision is correct and is not inconsistent with any decision of this Court or any other court of appeal.”
Additionally, the DOJ alleges that NAR benefited from the original settlement, which closed the investigation because it meant the trade group did not have to respond to the DOJ’s civil investigative demands.
“The government’s decision to reopen the investigation thus did not constitute a withdrawal or repudiation of any ‘binding’ commitment,” the filing said. “Because the decision below does not address the question raised in the petition, this case would be a poor vehicle for the Court’s review.”
