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The National Association of Realtors (NAR) is challenging a U.S. Court of Appeals ruling that allows the Department of Justice (DOJ) to reopen a previously closed investigation into NAR's policies, despite a prior settlement. As we will discuss in today's email, the core issue revolves around the interpretation of the word "closed." Will this case set a precedent, potentially allowing other settled cases to be reopened?

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This week in Propmodo Technology, we delve into access control for multifamily and commercial buildings. We'll examine the new standards that are mitigating cybersecurity threats in modern high-tech access control systems and discuss the role of access control within a building's broader security ecosystem. We'll also explore the growing trend of replacing traditional keys with mobile devices like smartphones and smartwatches.

Now, let's dig in!

NAR Petitions the DOJ Over the Meaning of the Word “Closed”

Lawyers and legal scholars often spend significant time arguing over the definition of a word. Now, with the reopening of the DOJ’s investigation into the National Association of Realtors (NAR) after a settlement had been reached in their commission lawsuits, we are witnessing a battle over one of the simplest words in the English language: "closed."

This week, NAR filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit to challenge its ruling that would allow the Department of Justice to reopen a previously closed investigation into NAR’s policies. NAR argues that when the settlement was made, they were informed the case would be closed: “This letter is to inform you that the Antitrust Division has closed its investigation into [NAR's] Clear Cooperation Policy and Participation Rule […] No inference should be drawn, however, from the Division's decision to close its investigation into these rules, policies or practices not addressed by the consent decree.”

However, according to two out of three judges, that statement did not mean the case would be closed forever. “We discern no commitment by DOJ — express or implied — to refrain from either opening a new investigation or reopening its closed investigation, which might entail issuing new CIDs related to NAR's policies. Put simply, the fact that DOJ ‘closed its investigation’ does not guarantee that the investigation would stay closed forever.”

NAR has cited the dissenting judge, Judge Reed Walker, in their petition. He argued that "closed," in certain contexts, means closed forever. He used the analogy of a child being told to close the door by their parents to illustrate this point. “Now imagine: A parent says, ‘Close the door when you leave for school.’ In that case, even if DOJ's literalist reading works in the abstract, it fails to capture the command's true meaning. Perhaps Dennis the Menace would close the door and then immediately reopen it before running toward the school bus and mockingly calling back, ‘You didn't say to keep it closed!’ But an obedient child would not.”

Hopefully, this new chapter in the antitrust case produces more colorful writing, but what is at stake is much bigger than just the meaning of one word. If the court agrees with the DOJ, other cases could be reopened even if they have already been settled by the parties. This could cast doubt on any future settlements and give defendants more reason to continue arguing their cases in court. Judge Walker summed it up in his final statement in his dissenting opinion: “So if you ever find yourself negotiating with the Antitrust Division of the Department of Justice, let today's case be a lesson: Buyer Beware.”

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Overheard

Propmodo Technology: Access Control

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Propmodo Daily is written and edited by Franco Faraudo with contributions from readers like you and the Propmodo team.

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