The U.S. Supreme Court on Monday denied a request from the National Association of Realtors (NAR) to hear an appeal of a lower court ruling that the Department of Justice (DOJ) could reopen an investigation into the practices of the real estate group.
The decision allows the DOJ to go forward with the investigation into the NAR’s involvement in potentially anticompetitive practices. The Supreme Court denied the request without stating a position on the merits of the case, which is common when turning down a request for review of a lower court decision.
The DOJ first began investigating NAR for anticompetitive practices more than five years ago as part of a lawsuit brought against the association over claims that it violated antitrust laws and had conspired to fix rates real estate agents charge consumers. According to the lawsuit, first brought by a group of home sellers in Missouri, the NAR required seller’s agents to offer commissions to a buyer’s agent.
In November of 2020, the NAR reached a settlement with the DOJ at the end of the first Trump administration. However, in 2021, the Biden administration wanted to reopen the investigation into the allegations of rate fixing.
NAR sued, saying the DOJ could not change its mind after the earlier settlement. On a different track, the NAR settled the class action lawsuit with home sellers in March of last year, agreeing to pay $418 million. It is unclear whether the incoming Trump administration would be interested in pursuing an investigation into the NAR’s practices.
The Court of Appeals in D.C. in April of last year decided that the DOJ could continue investigating NAR even after the settlement between the NAR and the real estate agents. The DOJ praised the circuit court’s April decision at the time.
“Real estate commissions in the United States greatly exceed those in any other developed economy, and this decision restores the antitrust division’s ability to investigate potentially unlawful conduct by NAR that may be contributing to this problem,” said Assistant Attorney General Jonathan Kanter, the head of the Justice Department’s antitrust division. “The antitrust division is committed to fighting to lower the cost of buying and selling a home.”
NAR responded to the Supreme Court’s decision to decline hearing the appeal by saying that it was always a possible outcome and that it is rare for the court to grant a petition to examine a lower court’s decision. NAR vows to continue to engage with the Justice Department and that this issue remains a priority for the leadership team.
“This ends the appeals process, as NAR has exhausted every available opportunity to fight for the interests of our members in our effort to hold the government accountable in honoring its agreements,” NAR President Kevin Sears is quoted on the association’s website. “In light of the Supreme Court’s decision not to accept the case, the U.S. Court of Appeals for the D.C. Circuit’s decision will stand, and the DOJ will not be bound to the terms of the 2020 settlement agreement. DOJ’s investigation will proceed.”
