The National Association of Realtors (NAR) has petitioned the U.S. Supreme Court, requesting the nation’s highest court prevent the Department of Justice (DOJ) from reopening an investigation into the trade group’s broker commission practices. The petition, filed Thursday, argues that the DOJ is violating a 2020 settlement that had previously closed an inquiry into the association’s practices.
The NAR, based in Chicago, maintains that the DOJ’s renewed investigation contradicts an agreement made in 2020 to resolve a probe that focused on the association’s policies, including a controversial rule requiring home sellers to offer commission to buyer’s agents in order to list properties on the Multiple Listing Service (MLS).
In 2021, the DOJ withdrew from this settlement, citing concerns that the agreement would hinder future antitrust investigations into the NAR. The Department’s move has since led to legal battles over the scope and interpretation of the original settlement.
The NAR’s petition, filed by its attorneys at Quinn Emanuel Urquhart & Sullivan, challenges a divided decision in April by the U.S. Court of Appeals for the D.C. Circuit, which ruled that federal investigators were within their rights to reopen the probe. In the appeal, the Supreme Court is now being asked to weigh in on this legal dispute, which could set a precedent for future federal agency investigations and enforcement actions.
A spokesperson for the NAR characterized the appeal as “a fight to hold the Department of Justice to the terms of its agreement,” underscoring the importance of honoring legal settlements irrespective of changes in political administration or leadership within federal agencies.
The DOJ’s investigation primarily focuses on rules that had previously required home sellers to offer commissions to buyers’ agents for their listings to appear on MLS platforms, a practice which has been claimed to violate U.S. antitrust laws by directing buyers’ agents to homes that offer higher commissions. These concerns were central to the investigation and subsequent legal discussions.
In March of this year, the NAR reached a $418 million class action settlement with private plaintiffs regarding these commission practices, with the terms of the deal eliminating the requirement for sellers to offer commissions for MLS listings. The settlement is currently awaiting final approval in a Missouri federal court. The NAR has consistently denied any wrongdoing.
While the trade group no longer mandates commission offers for MLS listings, commissions can still be negotiated between agents and clients as part of the transaction process.
A previous decision by a Washington, D.C., trial judge had prevented the DOJ from resuming its investigation, but the D.C. Circuit Court overturned that ruling in a 2-1 vote. The appeals court majority found that the DOJ had not made a binding commitment to refrain from reopening the investigation.
As the case progresses, the NAR now looks to the U.S. Supreme Court to determine the future of the DOJ’s probe and whether the terms of the 2020 settlement will be upheld.
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