DOJ responds to NAR’s petition for a rehearing of its appeal
The
Department
of
Justice
has
responded
to
the
National
Association
of
Realtors’
(NAR)
petition
for
a
rehearing
of
the
DOJ’s
appeal
to
reopen
its
investigation
into
the
trade
group,
and
it
is
strongly
against
a
rehearing.
In
a
response
filed
on
Monday,
the
DOJ
claims
that
a
rehearing
is
unwarranted
because
the
decision
that
was
reached
by
three-judge
panel,
which
ruled
on
the
appeal,
“is
fact-bound
and
‘narrow,’
correctly
relying
on
the
plain
language
of
the
three-sentence
letter.
The
Petition
does
not
identify
any
errors
of
law
or
fact
meriting
panel
rehearing
and
falls
far
short
of
meeting
the
‘demandingly
high’
standards
warranting
rehearing.”
The
three-sentence
letter
at
the
center
of
the
appeal
was
sent
by
the
DOJ
to
NAR
in
November
2020.
In
the
letter,
the
DOJ
agreed
to
close
its
investigation
into
NAR.
Earlier
in
2020,
the
DOJ’s
antitrust
division
agreed
to
a
settlement
after
investigating
the
trade
group’s
listing
and agent
compensation
policies.
The
settlement
proposed
at
the
time
included
requirements
for
NAR
to
boost
transparency
about
broker
commissions
and
to
stop
misrepresenting
that
buyer
broker
services
are
free.
But
the
DOJ,
under
new
leadership
in
the
Biden
administration,
withdrew
the
settlement in
July
2021,
stating
that
the
terms
of
the
agreement
prevent
regulators
from
continuing
to
investigate
certain
association
rules
that
they
feel
harm
buyers
and
sellers.
NAR
filed
a petition in
September
2021
to
set
aside
or
modify
the
DOJ’s
probes
into
the
trade
group.
In
late
January
2023,
Judge
Timothy
Kelly
of
the U.S.
District
Court
for
the
District
of
Columbia
—
a
Trump
administration
appointee
—
ruled
in
favor
of
NAR.
He
stated
that
the
earlier
settlement
terms
were
still
valid
and
that
allowing
the
investigation
to
continue
would
take
away
the
benefits
NAR
had
negotiated
in
the
original
settlement.
The
DOJ appealed
the
ruling in
March
2023,
and
the
three-judge
panel heard
oral
arguments from
NAR
and
DOJ
in
early
December
2023
before
making
a
ruling
in
April
2024.
In
addition
to
stating
that
a
rehearing
in
unwarranted,
the
DOJ’s
response
states
that
the
petition
does
not
claim
that
the
panel’s
decision
“conflicts
with
any
other
court
of
appeals
decision
addressing
similar
facts
and
circumstances.”
In
NAR’s
petition,
the
trade
group
claims
that
a
panel
rehearing
should
occur
because
the
court’s
decision
was
full
of
“far-reaching
and
exceptionally
important”
errors.
“The
divided
panel’s
decision
in
this
significant
government-contract
interpretation
case
goes
‘where
no
court
has
gone
before,’
directly
conflicts
with
precedents
of
this
Court
and
the
Supreme
Court,
and
will
reshape
the
landscape
for
all
‘who
find
themselves
on
the
other
side
of
the
bargaining
table’
with
the
government,”
the
petition
states.
The
DOJ,
however,
believes
these
arguments
are
“unavailing.”
The
department
also
notes
that
the
panel
found
that
NAR
experienced
several
significant
benefits
from
the
November
2020
letter,
including
using
it
to
its
advantage
in
private
litigation.
“NAR
may
have
wanted
more
from
the
letter
than
what
it
actually
provided
—
including
a
forward-looking
commitment
—
but
that
does
not
make
the
Division’s
promise
to
provide
the
letter
illusory,”
the
response
states.
“Unable
to
extract
a
commitment
not
to
reinvestigate
from
the
Division
in
negotiation,
NAR
cannot
now
read
unstated
terms
into
the
letter’s
plain
language
to
gain
the
exact
same
benefits
the
Division
told
NAR
it
would
never
grant.”
The
response
also
addresses
one
of
NAR’s
harshest
claims
in
the
petition.
In
its
rehearing
petition,
NAR
contends
that
“the
decision
somehow
will
have
sweeping
consequences
for
other
private
parties
when
dealing
with
the
government
in
other
contexts.”
According
to
the
DOJ,
federal
antitrust
investigations
and
enforcement
actions
are
typically
resolved
by
a
consent
decree
and
not
a
letter
like
the
one
at
question
in
this
appeal.
“NAR’s
unsupported
rhetoric
about
the
government
repudiating
its
obligations
and
needing
to
turn
‘square
corners’
is
question
begging,
because
it
incorrectly
assumes
that
the
Division
made
a
promise
to
refrain
from
future
investigation
—
which
never
occurred
and
is
not
reflected
anywhere
in
the
proposed
consent
decree
or
closing
letter,“
the
DOJ
wrote.
“NAR’s
argument
that
the
Division
‘sought
to
diminish’
the
promises
made
by
the
former
administration
fails
for
the
same
reason,”
the
response
states.
“To
the
contrary,
the
Division’s
position
then
and
now
is
the
same
—
that
it
would
not
and
could
not
promise
to
refrain
from
future
investigation
because
of
internal
policies
against
restricting
the
future
exercise
of
prosecutorial
discretion.”
In
an
emailed
statement,
Mantill
Williams,
the
vice
president
of
communications
at
NAR,
said
the
trade
group
is
confident
in
its
petition.
“NAR
will
continue
to
champion
our
members,
home
buyers,
and
home
sellers
by
working
to
ensure
the
DOJ
is
held
to
the
terms
of
our
2020
agreement,”
Williams
wrote.
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