National Association of Realtors wants to school DOJ on meaning of 'closed' probe

Signage is seen at the United States Department of Justice headquarters in Washington, D.C., August 29, 2020. REUTERS/Andrew Kelly
  • Trade group points to dictionary definition of "close" to make argument
  • DOJ maintains it did not commit to refraining from further investigation

(Reuters) - The National Association of Realtors is hanging its federal lawsuit on what it says defines a closed case, as it argues that the U.S. Justice Department should be barred from an ongoing antitrust inquiry into the trade group after earlier reaching a now-withdrawn settlement.

The Chicago-based association's lawyers at Quinn Emanuel Urquhart & Sullivan said in a court filing in U.S. District Court for the District of Columbia on Nov. 12 that the "plain language" of the earlier settlement reached last year required the DOJ antitrust division to "close" an investigation of certain association rules and policies concerning property listings and marketing competition.

The trade group, responding to the Justice Department's bid to dismiss the complaint, included in its filing a color image of a Merriam-Webster dictionary cover and scans of a page showing the definition of the word "close."

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A DOJ spokesperson on Monday declined to comment. The government has said the proposed settlement with the National Association of Realtors (NAR) "will not sufficiently protect the Antitrust Division's ability to pursue future claims against NAR."

Lawyers for the association said it agreed to settle DOJ's investigation last year based on a "required commitment from the Antitrust Division to 'close' its investigation."

"That term must be construed according to its 'ordinary meaning,' and the Antitrust Division's position, that it was free to 'open' that same investigation at any time, contradicts the clear meaning of the parties' agreement," Quinn's Ethan Glass, the firm's antitrust chair, wrote in the latest filing.

In a statement, the association said "the Antitrust Division cannot prevail by simply asserting — without citation to law, rule, or policy — that it cannot enter into settlements that limit investigations by future administrations."

Antitrust enforcers, the association's statement said, "routinely [enter] agreements that limit future investigations, including through its leniency program, guilty pleas, and non-prosecution agreements."

The case is National Association of Realtors v. United States, U.S. District Court for the District of Columbia, No. 1:21-cv-02406-TJK.

For plaintiff: Ethan Glass of Quinn Emanuel Urquhart & Sullivan

For defendant: James Luh of the Justice Department

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