T
he Department of Justice (DOJ) claims it never agreed to a "no take backs" clause when it settled its investigation into the National Association of Realtors (NAR) in 2020. In response to NAR's appeal to the Supreme Court, the DOJ argued that its settlement left open the possibility for future investigations. The dispute centers on NAR's interpretation of the agreement as a binding contract that prohibits re-opening an investigation.

    The back-and-forth between the two organizations began in 2019 when the DOJ started investigating NAR's Participation Rule. The policy required listing agents to include buyer agent compensation offers on REALTOR-affiliated MLSes and was later rescinded as part of a settlement in the Sitzer/Burnett antitrust lawsuit. In June 2020, the DOJ added the Clear Cooperation Policy (CCP) to its list after NAR adopted it.

    The DOJ and NAR agreed to a proposed settlement in November 2020, but the DOJ withdrew from it in July 2021 and reopened its investigation. The Supreme Court appeal follows an April appeals court ruling in favor of the DOJ, which overturned a January district court decision in NAR's favor.

    In its filing, the DOJ stated that it was not disputing the 2020 agreement but questioning whether it had agreed to close the investigation without re-opening it. The DOJ reiterated that it made no commitments about future investigations during negotiations. NAR argued that the appeals court decision allowed the DOJ to evade its contractual obligations based on its preference.

    The DOJ countered that reopening its investigation did not constitute a withdrawal from any binding commitment. NAR is likely seeking to put behind a tumultuous year marked by lawsuits, investigations into spending and organizational management, and dwindling membership numbers. The DOJ noted that even after resolving the Sitzer/Burnett case, future antitrust litigation remains possible due to concerns over buyer's agreements potentially stifling competition.