The National Association of Realtors is asking a federal judge to not let the Department of Justice walk away from a settlement that ended federal investigations into rules banning pocket listings.

The DOJ and NAR jointly announced the settlement in the waning days of the Trump administration, but the department declared it was withdrawing from the deal in July in order to let it launch “a broader investigation of NAR’s rules and conduct,” which it said the settlement would have obstructed.

“By its action, the DOJ thinks it should be free to reconsider the terms of an agreement at any time, for any reason – or no reason at all,” NAR 2021 President Charlie Oppler said in a statement. “If that view prevails, it would undermine the strong public policy in favor of upholding settlement agreements and public confidence that the government will keep its word in future cases.”

The original settlement would have forced NAR to modify or repeal four policies adopted by it and the many multiple listings services it controls:

• Prohibiting MLSs that are affiliated with NAR from disclosing to prospective buyers the commission that the buyer broker will earn.
• Allowing buyer brokers to misrepresent to buyers that a buyer broker’s services are free.
• Enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered
• Limiting access to the lockboxes that provide licensed brokers with access to homes for sale to NAR-affiliated real estate brokers.

Massachusetts’ primary MLS, MLS PIN, is not affiliated with NAR.

In a statement issued to the media on Monday, NAR defended the practice of having buyers pay commissions as pro-competition by “allowing small brokerages to compete on a level playing field with large brokerages and promotes equitable home ownership opportunities for all consumers.”

The NAR petition hints that federal investigators are particularly interested in the association’s Clear Cooperation policy, which attempts to restrict pocket listings. As part of the settlement, the DOJ had agreed to end its investigations into the policy and into NAR’s Participation Rule, which lets MLSs limit access to their service to only those actively engaged in listing homes and representing buyers seeking homes.

The pocket listings policy has been the subject of recent lawsuits by companies trying to break into the home-sales space without having to pay NAR dues or list homes on NAR-affiliated MLS networks.