The justices will consider NAR’s motion on Friday and are scheduled to issue a ruling on Monday. The real estate trade group asked the country’s highest court to hear the case “to make clear that the government, like any other party, must honor its contractual promises.”
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U.S. Supreme Court justices will convene Friday to decide whether to consider the National Association of Realtors’ lawsuit against the Department of Justice.
According to the docket in the case, the justices will meet in closed session on Jan. 10 to consider NAR’s motion filed in October, asking the court to We request that the April ruling be reconsidered. The Department of Justice will reopen previously closed investigations pursuant to NAR rules.
These include controversial rules regarding fees and pocket listings, known as Participation Rules and Clear Cooperation Policies, which are at issue in multiple antitrust lawsuits against NAR.
In a Dec. 23 legal filing, the NAR said the federal agency retains the ability to reopen investigations into these policies even after the Justice Department closed its investigation in November 2020 as part of the proposed settlement. refuted the Justice Department’s argument to the court that the The agency later withdrew.
The real estate trade group asked the country’s highest court to hear the case “to make clear that the government, like any other party, must honor its contractual promises.”
“If this decision is allowed to stand, many people, from sophisticated corporations vital to our nation’s economy to criminal defendants who face vast prosecutorial advantages of the government, will continue to use the government’s “This would destabilize the interests of the various private entities that contract with the company.”
“The following decisions also risk undermining the government’s sovereign ability to legitimize national interests through contracts. This is a concern that goes beyond the government’s desire to avoid the specific settlement at issue here. .”
After NAR asked the Supreme Court to hear the case, the Justice Department told the court it had finished investigating the regulations at issue, but that it retained the right to review the case during settlement negotiations. I have submitted the prepared answer as stated above. We will continue to revise our policy.
NAR argues that because the appellate court agreed that the Justice Department did not commit to refraining from reopening the investigation, a higher court should take up the case with that interpretation as “special treatment.”
“The D.C. Circuit granted special treatment to the government by deciding exactly that.[r]NAR’s attorneys wrote that despite various indications of impropriety on the interpretive scale, there was no commitment to refrain from reopening the investigation.”
“Without such preferential treatment, the Department of Justice could not have succeeded in its brazen reinterpretation of the settlement agreement.
“Thus, this case gives the court the troubling view that courts may bend or break the rules of contract interpretation and adversarial litigation to release contractual promises that the government no longer wants to keep.” It gives you the opportunity to reject it outright.”
In 2019, the Department of Justice launched an investigation into NAR’s now-defunct participation rules. The rule required listing brokers to compensate buyer brokers for submitting listings to real estate agent-affiliated multiple listing services, and was followed by an investigation into NAR’s clear cooperation. This policy is still in effect and requires listings to be registered with a realtor-affiliated MLS within one business day of being published.
Although NAR eliminated participation rules as part of a national antitrust settlement, CCPs are currently being hotly debated in the real estate industry, with oversight from the Department of Justice.
In 2020, the Department of Justice and NAR agreed to a settlement of the investigation, and the Department of Justice sent a letter to NAR stating that it had closed its investigation into the two regulations. However, after the Trump administration was replaced by the Biden administration, the Justice Department withdrew from the settlement in July 2021 and resumed investigating the policy.
NAR’s petition has a high probability of becoming a reality. According to the federal government, four of the Supreme Court’s nine justices must vote to accept a case, and the court only accepts a small percentage of the cases it is asked to review each year, or more than 7,000 cases. Of these, only 100-150 are.
Courts typically agree to hear cases only if they are “of national importance, may harmonize conflicting judgments in the Federal Circuit, and/or may have precedential value.” .
The court is scheduled to announce a decision on whether to hear NAR’s case on Monday, January 13 at 9:30 a.m. ET, according to the court’s website.
Read NAR’s legal filing with the Supreme Court (please reload the page if the document does not appear):
Email Andrea V. Brambilla.
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