Supreme Court denies NAR request to review DOJ case
The decision is a blow for the association, which has spent years trying to prevent the Justice Department from reopening its investigation into NAR policies.
Three months ago, the National Association of Realtors asked the Supreme Court to review an appeals court ruling in its ongoing battle with the Department of Justice.
Today, the high court has announced its decision: It will not take the case, leaving in place a judgment made by the U.S. Court of Appeals last April allowing the DOJ to continue investigating the association.
What this means for NAR
The Supreme Court did not take a position on the merits of NAR's petition or indicate why it declined to hear the case, which is typical when denying a writ of certiorari (a formal request to review a lower court's decision).
While NAR may have hit a legal dead end in its efforts to block further DOJ investigations, it will still be able to refute antitrust claims in court, should the federal agency decide to pursue litigation. And while some think the Supreme Court's denial will embolden the DOJ, others believe the agency will be reined in this year, limiting its efforts to go after the industry.
A spokesperson for NAR offered the following statement: "While the Supreme Court ultimately decided against reviewing the lower court's decision, NAR remains committed to taking every possible step to fight for the interests of our members and the consumers they serve."
A bit of history
How did we get here? For the past several years, the Department of Justice has been trying to reopen an antitrust investigation into NAR policies — a probe that began in 2019 but was closed in 2020. Since then, NAR and the DOJ have been arguing in court over the wording of a settlement agreement and whether "closed" means "can never be reopened" — with the Justice Department insisting that it never promised to cease all antitrust investigations related to NAR.
What is the DOJ focused on? The agency's original investigation centered on NAR's Participation Rule (now moot) and Clear Cooperation Policy (CCP). The DOJ argued that the CCP "restricts home-seller choices and precludes competition from new listing services," according to an appeals court filing. Similar arguments have been made by private listing services, which have sued NAR over the policy, and some industry leaders, who believe the CCP is anti-consumer.
More recently, the DOJ has suggested that sellers should be prohibited from offering compensation to buyer agents, period — and that the NAR settlement might not do enough to address antitrust concerns. Two days before that deal was approved, the agency threw yet another wrench in the works, expressing concerns that new buyer agreement requirements may be anticompetitive.
A timeline of court activity:
Jan. 25, 2023 — In a victory for NAR, a district court judge denies a DOJ request to reopen its investigation into the association.
Dec. 1, 2023 — The DOJ appeals the ruling, taking its request to the U.S. Court of Appeals in D.C.
Apr. 5, 2024 — The appeal court rules in favor of the DOJ, allowing the agency to continue its investigations.
May 20, 2024 — NAR files a rehearing petition with the appeals court, hoping for another opportunity to make its case.
June 17, 2024 — The DOJ responds to that petition, arguing that a rehearing is not warranted.
July 12, 2024 — The appeals court denies NAR's rehearing request.
Oct. 10, 2024 — NAR files a writ of certiorari with the Supreme Court, asking the Justices to review the appeals court decision.
Dec. 10, 2024 — The DOJ files a response to the writ of certiorari, saying it never promised to halt all investigations into NAR.
Jan. 13, 2025 — The Supreme Court denies NAR's writ of certiorari, allowing the appeals court ruling to stand.