BAM Key Details:

  • On June 17, 2024, the Department of Justice responded to a petition filed by the National Association of Realtors. 
  • NAR’s petition requested a rehearing of the court’s decision to allow the DOJ to reopen its investigation. 
  • The DOJ stated a “rehearing is not warranted.”

    The battle between the Department of Justice (DOJ) and the National Association of Realtors (NAR) continues this summer.

    In May, NAR filed a petition for a rehearing of the court’s decision that allows the DOJ to reopen its investigation against the organization. On June 17, the DOJ responded in a new court filing, stating that a “rehearing is not warranted.” In the filing, the DOJ argues that the three-judge “panel’s fact-bound decision is correct and does not conflict with any decision of the Supreme Court or any court of appeals.”

    Here’s what we know so far. 

    An abridged history of DOJ vs NAR

    Here’s a quick and selective recap of their recent legal history: 

    • November 2020: The DOJ sent a three-sentence letter to NAR agreeing to close its investigation into the trade group. Earlier the same year, the DOJ antitrust division agreed to a settlement after investigating NAR’s listing and agent compensation policies. The settlement was conditioned upon NAR boosting transparency about broker commissions and required them to stop misrepresenting buyer agent services as free. 
    • July 2021: The DOJ, operating under new leadership in the Biden administration, withdrew the settlement, arguing the terms of that agreement barred regulators from investigating certain NAR rules they believe are harmful to buyers and/or sellers. 
    • September 2021: NAR filed a petition to set aside or modify the DOJ’s investigation into the trade group’s policies. 
    • January 2023: Judge Timothy Kelly of the U.S. District Court for the District of Columbia (appointed during the Trump administration) ruled in NAR’s favor, stating that the terms of the earlier settlement were still valid and that allowing the DOJ to continue its investigation would cancel the benefits NAR had negotiated in the original settlement. 
    • March 2023: The DOJ appealed the January ruling. 
    • December 2023: A three-judge panel heard oral arguments from both parties and, in April 2024, ruled 2-to-1 in favor of the DOJ, allowing the Department to continue its investigation. 
    • May 20, 2024: NAR files a petition for a rehearing of the panel’s decision. 

    It’s not hard to see why the DOJ would oppose a re-hearing of a decision in its favor. As for its main arguments, the first has to do with what is lacking in the NAR petition. 

    Simply put, the DOJ states a rehearing is “not warranted” because NAR’s petition fails to clearly articulate a legitimate reason for it; nowhere does the trade association claim the decision “conflicts with any other court of appeals decision addressing similar facts and circumstances.” 

    In defense of its petition for a rehearing, NAR claims the three-judge panel’s decision contained “far-reaching and exceptionally important” errors. 

    From the NAR petition: 

    “The divided panel’s decision in this significant government-contract interpretation case goes ‘where no court has gone before,’ directly conflicts with precedents of this Court and the Supreme Court, and will reshape the landscape for all ‘who find themselves on the other side of the bargaining table’ with the government.”

    In its response to NAR’s petition, the DOJ took issue with the former’s statement that “the decision somehow will have sweeping consequences for other private parties when dealing with the government in other contexts.” 

    As the Department pointed out, federal antitrust investigations and enforcement actions are typically decided with a consent decree and not with letters like the one at the center of NAR’s petition for a rehearing. 

    “NAR’s unsupported rhetoric about the government repudiating its obligations and needing to turn ‘square corners’ is question begging, because it incorrectly assumes that the Division made a promise to refrain from future investigation — which never occurred and is not reflected anywhere in the proposed consent decree or closing letter.

    “NAR’s argument that the Division ‘sought to diminish’ the promises made by the former administration fails for the same reason,” the response states. “To the contrary, the Division’s position then and now is the same — that it would not and could not promise to refrain from future investigation because of internal policies against restricting the future exercise of prosecutorial discretion.” (DOJ)

    Mantill Williams, the vice president of communications at NAR, said in a recent emailed statement that the trade association is “confident in its petition.” 

    NAR will continue to champion our members, home buyers, and home sellers by working to ensure the DOJ is held to the terms of our 2020 agreement.

    Mantill Williams

    NAR Vice President of Communications

    Stay tuned as we learn more.