DOJ to Supreme Court: We never agreed ’not to reopen’ NAR investigation

The U.S. Department of Justice (DOJ) is not playing around when it comes to the National Association of Realtors (NAR), which petitioned the U.S. Supreme Court to look at an appeals court ruling allowing the DOJ to reopen its investigation into the trade group.

In a filing submitted on Wednesday, the DOJ states that it made it clear it was leaving open the possibility to reopen its investigation into NAR, and it should therefore be allowed to do so.

The filing was a response to NAR’s writ of certiorari submitted to the Supreme Court in October. In the petition, NAR asked the high court to review a decision made by the U.S. Court of Appeals for the District of Columbia Circuit that permitted the DOJ to reopen an investigation into NAR’s rules — including its now-defunct Participation Rule and its current Clear Cooperation Policy.

According to the DOJ’s most recent filing, the agency did agree to close its investigation in 2020.

“There is no dispute that the Division agreed in 2020 to ‘close’ its investigation into two of petitioner’s rules, the Participation Rule and the Clear Cooperation Policy,” the filing states. “The disputed question is whether, in addition to agreeing to close the investigation, the Division agreed not to reopen it.”

The question as to whether the DOJ agreed to not reopen the investigation has become a point of contention, and the resulting legal battle led NAR to file its petition with the Supreme Court. According to the DOJ, nowhere in its settlement negotiations with NAR in 2020 did it agree to not reopen the investigation.

“During negotiations, the Division repeatedly informed petitioner that, even if the Division agreed to close an investigation, it could not commit to refraining from investigating petitioner’s rules in the future,” the DOJ wrote.

The DOJ’s investigation into NAR’s policies began in 2018, when the agency claims it received a complaint from an industry participant. In November 2020, the DOJ and NAR filed a settlement in which the DOJ agreed to close its investigation. But in July 2021, under the Biden administration, the DOJ reopened the investigation into the two policies. This led to a lawsuit between the parties. A court initially ruled in favor of NAR in January 2023, but an appeals court reversed the decision in April 2024.

In its writ of certiorari filed in October, the trade group claimed that the appeals court ruling “permitted 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 permit.”

The DOJ, however, does not see things this way. In its filing, the DOJ claims that the appeals court invoked the “unmistakability principle, which holds that a contract should not be interpreted to ‘cede a sovereign right of the United States unless the government waives that right unmistakably.’” 

“The court of appeals in this case determined that the government had made no commitment to refrain from reopening an antitrust investigation that the government had closed,” the DOJ wrote. “That decision is correct, and it does not conflict with any decision of this Court or another court of appeals.”

Additionally, the DOJ claims that NAR benefited from the original settlement, which closed the investigation as it meant that the trade group did not have to respond to the DOJ’s civil investigative demands.

“The government’s decision to reopen the investigation thus involved no withdrawal from, or repudiation of, any ‘binding’ commitment,” the filing states. “Because the decision below does not implicate the question presented in the petition, this case would be a poor vehicle for the Court’s review.”