NAR Plans to Petition Supreme Court Over DOJ Probe

The National Association of Realtors is ready to take its legal fight with the Department of Justice to the highest court in the land.

The trade group plans to petition the Supreme Court in its battle to block the Justice Department’s investigation into its practices, according to a court filing reported by Crain’s. NAR intends to make its move by Oct. 10.

The petition pertains to an investigation the DOJ launched five years ago into some of NAR’s policies around agent commissions, including the Participation Rule. It’s the same rule that was at the center of a landmark $418 million settlement proposed to clear up class-action cases brought by homebuyers and enact rule changes that went into effect in late August.

The feud between NAR and the DOJ appeared to get a restart in April, when a federal appeals court ruled the Justice Department could renew its investigation into NAR. The move reversed a decision regarding a 2020 settlement between the two sides.

That settlement under President Donald Trump’s administration included an agreement to drop the investigation in exchange for rule changes. After President Joe Biden took office, however, the agency backed out of the settlement and started a “broader investigation,” which NAR claimed wasn’t allowed under the previously agreed-to settlement terms.

Uncertainty for agents and those in the housing market reigned as multiple listing services across the country eliminated fields for offering compensation to a buyer’s broker last month. Additionally, agents need to secure signed agreements with buyers before taking them to tour properties as part of the changes instituted on Aug. 17.

But the DOJ’s involvement hints at the possibility of even more changes coming in the future. The agency avoided weighing in on the landmark Sitzer/Burnett case, but has made some noise regarding proposed settlements in other cases, arguing against agreements that don’t overhaul alleged anticompetitive practices.

— Holden Walter-Warner