On Friday, nine judges US Supreme Court will meet and decide whether to weigh the legal battle between the National Association of Realtors (NAR) and Department of Justice (DOJ).
The filing of the case puts Jan. 10 as the conference date for NAR’s writ of certiorari filed in October. The court’s website indicates that it will post its decision on Monday, January 13.
The legal battle began in 2018, when the DOJ opened an investigation into NAR’s Defunct Participation Act and its current Partnership Policy. The two groups reached an initial agreement in 2020, which required NAR to increase transparency about consumer commissions and stop misrepresenting the fact that consumer services are free. In exchange for NAR’s compliance, the DOJ said it would close the investigation.
But the DOJ, under new leadership in the Biden administration, revoked the deal in July 2021. It said the terms of the deal prevented regulators from continuing to investigate certain federal laws that could harm consumers and sellers.
NAR filed a motion in September 2021 to set aside or turn the DOJ investigation into a trade group.
In January 2023, US District Court Judge Timothy Kelly ruled that the terms of the settlement still apply and that allowing the investigation to continue would take away the benefits NAR had negotiated in the original agreement.
The DOJ appealed the decision in March 2023. In April 2024, the United States Court of Appeals for the District of Columbia Circuit reversed Kelly’s decision, allowing the DOJ to reopen its investigation.
In response to NAR’s writ of certiorari, the DOJ wrote that it did not agree to close its investigation as part of the 2020 settlement. In a response filed in late December, NAR disputed these and other claims made by the DOJ, including that the agency still has the power to reopen its investigation of NAR after it agreed to close the investigation as part of the settlement.
NAR reiterated its belief that allowing the DOJ to reopen the investigation sets a dangerous precedent that the government does not have to fulfill its contractual promises.
“If vacated, the decision below will harm the interests of a variety of private parties that contract with the government, from high-profile firms that are vital to our nation’s economy to criminal defendants facing substantial government prosecution benefits,” NAR’s response said.
“The decision below also risks undermining the government’s ability to protect national interests through contracts, a concern that outweighs the government’s desire to avoid the solution at issue here.”
The trade group also disputed the DOJ’s claims that it did not commit to reopening the investigation into the proposed settlement, and that the DC court’s interpretation of such complaints was the result of “special treatment.”
“The DC Circuit gave the government preferential treatment by deciding — th[r]various zeros on the interpretation scale – that it did not commit to refusing to reopen the investigation,” the document said. “Without such mistreatment, the DOJ would not have succeeded in redefining the settlement agreement.”
For the Supreme Court to hear the case, four of the nine justices must accept it. In total, the court usually receives 100 to 150 cases out of the 7,000 complaints it receives each year.
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