National Association of Realtors v. United States of America, Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2023 Decided April 5, 2024
No. 23-5065
NATIONAL ASSOCIATION OF REALTORS ,
APPELLEE
v.
UNITED STATES OF AMERICA, ET AL .,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02406)
Frederick Liu, Attorney, U.S. Department of Justice,
argued the cause for appellants. On the briefs were Daniel E.
Haar, Nickolai G. Levin, and Steven J. Mintz, Attorneys.
Christopher G. Michel argued the cause for appellee. With
him on the brief were Michael D. Bonanno, William A. Burck,
and Rachel G. Frank.
Andrew R. Varcoe, Djordje Petkoski, and Jacob Coate
were on the brief for amicus curiae Chamber of Commerce of
the United States of America in support of appellee.
Before: HENDERSON , W ALKER and PAN , Circuit Judges.

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Opinion for the Court filed by Circuit Judge PAN .
Dissenting opinion filed by Circuit Judge W ALKER.
PAN , Circuit Judge. The Antitrust Division of the United
States Department of Justice (“DOJ”) opened an investigation
of potentially anticompetitive practices in the real-estate
industry that were implemented by the National Association of
Realtors (“NAR”). In November 2020, DOJ and NAR settled
the case. In addition to filing a Proposed Consent Judgment in
the district court, DOJ sent a letter to NAR stating that DOJ had
closed its investigation of certain NAR practices and that NAR
was not required to respond to two outstanding investigative
subpoenas. Eight months later, in July 2021, DOJ exercised its
option to withdraw the Proposed Consent Judgment, reopened
its investigation of NAR’s policies, and issued a new
investigative subpoena. NAR petitioned the district court to set
aside the subpoena, arguing that its issuance violated a promise
made by DOJ in the 2020 closing letter. The district court
granted NAR’s petition, concluding that the new subpoena was
barred by a validly executed settlement agreement. We
disagree. In our view, the plain language of the disputed 2020
letter permits DOJ to reopen its investigation. We therefore
reverse the judgment of the district court.
I.
NAR is a trade organization with 1.4 million members
who work in the real-estate industry. For decades, NAR has
promulgated a “Code of Ethics,” along with other related rules,
which set policies that NAR members must follow when
brokering real-estate transactions.
In 2018, DOJ’s Antitrust Division opened a civil
investigation into certain NAR policies, after receiving a

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complaint from an industry participant. As part of the
investigation, DOJ issued two subpoenas, or Civil Investigative
Demands (“CIDs”),1 seeking information and documents
related to NAR’s operation of “multiple-listing services”
(“MLSs”). An MLS is an online, subscription-based database
that lists properties that are on the market in a particular
geographic area. Brokers representing sellers (or “listing
brokers”) post information about homes that are for sale on an
MLS, where buyer-brokers can view that information. There
are hundreds of MLSs operating in the United States, and some
MLSs have tens of thousands of participants, comprised
primarily of members of NAR’s local associations and boards.
DOJ served its first CID — CID No. 29935 (“CID No. 1”)
— in April 2019. That CID sought information regarding
various practices and procedures adopted by NAR, including a
longstanding policy known as the “Participation Rule.” Under
the Participation Rule, which NAR first implemented in the
1970s, listing brokers must offer the same commission to all
buyer-brokers when listing a property on an MLS. See NAR,
Handbook on Multiple Listing Policy 34 (2018),
https://perma.cc/AA7S-UFSB. According to DOJ, the
Participation Rule restrains price competition among buyer-
brokers and causes them to steer customers to higher-
commission listings.
In June 2020, DOJ served its second CID — CID
No. 30360 (“CID No. 2”) — which sought information from
NAR about a newly adopted rule called the “Clear Cooperation
1 A CID is a type of administrative subpoena. See FTC v. Ken
Roberts Co., 276 F.3d 583, 585 (D.C. Cir. 2001). The Antitrust Civil
Process Act authorizes DOJ to issue a CID whenever it “has reason
to believe that any person may be in possession, custody, or control
of any documentary material, or may have any information, relevant
to a civil antitrust investigation.” 15 U.S.C. § 1312(a).

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Policy.” That policy requires listing brokers to post a property
on an MLS within one day of when they begin to market the
property. See NAR, Handbook on Multiple Listing Policy 32
(2020), https://perma.cc/8BPG-UBGT. DOJ believes that the
Clear Cooperation Policy restricts home-seller choices and
precludes competition from new listing services.
NAR expressed its desire to settle the case. Thus, in July
2020, the parties began proposing “the outlines of a possible
resolution.” J.A. 243. During the negotiations, NAR asked
DOJ to agree to refrain from investigating the Participation
Rule for ten years.2 DOJ refused, stating that “a commitment
to not challenge NAR rules and policies in the future [was] a
nonstarter, especially in light of longstanding Department
policies concerning settlements that affect future potential
investigations.” Id. at 248. Thereafter, DOJ reiterated during
the negotiations that it would not “commit to never
challeng[ing] NAR rules and policies in the future in light of
longstanding Department policies on such commitments.”
Id. at 252 (July 29, 2020, letter); see also id. at 258–59
(Aug. 12, 2020, letter).
The parties ultimately agreed to enter a Proposed Consent
Judgment, which specifically addressed four NAR policies
other than the Participation Rule and the Clear Cooperation
Policy.3 The Proposed Consent Judgment also included a
2 NAR requested that DOJ (1) “stipulate that NAR’s Participation
Rule would not be subject to further investigation any time in the
next ten years”; and (2) “send a closing letter to NAR confirming that
it has no obligation to provide additional information or documents
in response to CID No. [1] or CID No. [2].” J.A. 247.
3 The policies addressed in the Proposed Consent Judgment were:
(1) NAR’s “Commission-Concealment Rules,” under which
affiliated brokers could conceal from homebuyers the unilateral

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“Reservation of Rights” clause that generally preserved DOJ’s
ability to bring actions against NAR in the future. The
Reservation of Rights clause provided that “[n]othing in this
Final Judgment shall limit the right of the United States to
investigate and bring actions to prevent or restrain violations of
the antitrust laws concerning any Rule or practice adopted or
enforced by NAR or any of its Member Boards.” J.A. 176.
NAR agreed to that language, which was proposed by DOJ, but
only on the condition that DOJ provide a “closing letter”
concerning the then-pending investigation of the Participation
Rule and the Clear Cooperation Policy. Id. at 126 (“NAR will
only agree to sign a consent decree including this [Reservation
of Rights] provision if DOJ provides written confirmation,
prior to the execution of the decree, that it will issue a closing
letter.”). NAR asked that the closing letter confirm that DOJ
closed the existing investigation and that NAR had no
obligation to respond to the two outstanding CIDs. DOJ
agreed, stating that it would send the requested closing letter
“once the consent decree is filed.” Id. at 128 (Oct. 28, 2020,
email).
On November 19, 2020, the government did two things:
(1) It filed the signed Proposed Consent Judgment in the
district court, along with a Complaint and a “Stipulation and
Order”; and (2) it sent the closing letter to NAR’s counsel.
None of the documents filed in court mentioned the
Participation Rule or the Clear Cooperation Policy. DOJ’s
blanket commission offered to buyer-brokers; (2) NAR’s “Free-
Service Rule,” under which buyer-brokers were permitted to
represent to homebuyers that their services were free; (3) NAR’s
“Commission-Filter Rules and Practices,” under which brokers
could filter properties on an MLS by the rate of commission; and
(4) NAR’s “Lockbox Policy,” which prohibited non-NAR brokers
from accessing the lockboxes that contain the keys to listed
properties.

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Complaint alleged that the four other NAR policies that were
the subject of the Proposed Consent Judgment violated
Section 1 of the Sherman Act, while the Proposed Consent
Judgment contained settlement terms related to those four other
policies. See supra note 3 (describing the NAR policies
covered by the Proposed Consent Judgment). The Stipulation
and Order stated that NAR would “abide and comply” with the
Proposed Consent Judgment, pending the entry of a final
judgment in the case by the district court. J.A. 148. It also
provided that “[t]he United States may withdraw its consent at
any time before the entry of the proposed Final Judgment.” Id.
at 147.
The closing letter sent to NAR’s counsel ended the then-
pending investigation of the Participation Rule and the Clear
Cooperation Policy, stating:
Dear Mr. Burck [NAR’s counsel]:
This letter is to inform you that the Antitrust
Division has closed its investigation into
[NAR’s] Clear Cooperation Policy and
Participation Rule. Accordingly, NAR will
have no obligation to respond to CID Nos.
29935 and 30360 issued on April 12, 2019 and
June 29, 2020, respectively.
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.
Sincerely,
/s/ Makan Delrahim [Assistant Attorney
General, Antitrust Division]

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J.A. 178.
DOJ published the Complaint, the Proposed Consent
Judgment, and a Competitive Impact Statement in the Federal
Register, as mandated by the Tunney Act. See United States v.
National Association of REALTORS® Proposed Final
Judgment and Competitive Impact Statement, 85 Fed. Reg.
81,489 (Dec. 16, 2020); 15 U.S.C. § 16(b). The Competitive
Impact Statement included a “description of events” giving rise
to the allegations in the Complaint, and explained the parties’
Proposed Consent Judgment, the remedies available to
potential private litigants, the procedures available to modify
the negotiated terms, alternatives to settlement that the
government considered, and the standard of review governing
the court’s approval of the Proposed Consent Judgment. See
J.A. 179–200. The Tunney Act requires that the United States
“receive and consider any written comments” pertaining to the
published materials during a mandatory 60-day period.
15 U.S.C. § 16(d). Thereafter, the district court must
determine whether the proposed consent judgment is in the
“public interest” before issuing a final judgment. Id. § 16(e).
In July 2021, after an unsuccessful negotiation to modify
the parties’ settlement agreement, DOJ exercised its option to
withdraw the Proposed Consent Judgment. The government
voluntarily dismissed the Complaint and filed a notice
informing the district court of the withdrawal of its consent.
Five days later, DOJ issued a new subpoena — CID No. 30729
(“CID No. 3”) — which requested information from NAR
regarding the Participation Rule and the Clear Cooperation
Policy, as well as several policies addressed in the withdrawn
Proposed Consent Judgment.
NAR petitioned the district court to set aside CID No. 3,
arguing that its issuance contravened the parties’ binding

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settlement agreement, which included DOJ’s promise in the
November 2020 closing letter to close its investigation of the
Participation Rule and the Clear Cooperation Policy.
Specifically, NAR argued that it had satisfied its obligations
under the settlement agreement by beginning to perform the
requirements of the Proposed Consent Judgment, and that DOJ
breached the overall agreement by issuing CID No. 3 in
contravention of the closing letter. The district court granted
NAR’s petition, agreeing with NAR that CID No. 3 was barred
by “a validly executed settlement agreement.” Nat’l Ass’n of
Realtors v. United States, 2023 WL 387572, at *3 (D.D.C. Jan.
25, 2023). The court concluded that the parties’ settlement
agreement included the November 2020 closing letter; and that
“the government breached the agreement by reopening the
investigation into those same rules and serving the new CID.”
Id. at *4.4 DOJ timely appealed. We have jurisdiction under
15 U.S.C. § 1314(e) and 28 U.S.C. § 1291.
II.
The Antitrust Civil Process Act (“ACPA”) authorizes
courts to “set[] aside” a CID based on “any failure of such
demand to comply with the provisions of [the ACPA], or upon
any constitutional or other legal right or privilege.” 15 U.S.C.
§ 1314(b). The parties agree that a CID is unenforceable if it
is barred by a valid settlement agreement. See NAR Br. 18;
DOJ Br. 28. The party served with a CID bears the burden of
4 NAR also petitioned the district court to modify CID No. 3
because it “ma[de] demands that are overly broad, unduly
burdensome, and irrelevant to any permissible investigation.”
J.A. 15. The district court declined to address NAR’s breadth and
burdensomeness objections because it set aside the CID in full.
Because the district court did not rule on NAR’s request for
modification, we decline to reach the issue.

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demonstrating that it should be set aside. United States v. R.
Enters., Inc., 498 U.S. 292, 301 (1991).
A settlement agreement is a contract. See Vill. of Kaktovik
v. Watt, 689 F.2d 222, 230 (D.C. Cir. 1982). The
“[i]nterpretation of the plain language of a contract is a
question of law subject to de novo review by this court.” LTV
Corp. v. Gulf States Steel, Inc. of Ala., 969 F.2d 1050, 1055
(D.C. Cir. 1992); see also Armenian Assembly of Am., Inc. v.
Cafesjian, 758 F.3d 265, 278 (D.C. Cir. 2014) (de novo review
for the question of whether a contract is ambiguous). We give
deference, however, to the district court’s factual findings if
they are at issue on appeal. See United States v. Microsoft
Corp., 147 F.3d 935, 945 n.7 (D.C. Cir. 1998). In determining
the meaning of federal contracts, we apply “federal common
law,” which looks to the Restatement of Contracts. United
States v. Honeywell Int’l Inc., 47 F.4th 805, 816 (D.C. Cir.
2022); Curtin v. United Airlines, Inc., 275 F.3d 88, 93 n.6 (D.C.
Cir. 2001).
The district court determined that the Proposed Consent
Judgment and the closing letter were components of a single,
binding settlement agreement. See Nat’l Ass’n of Realtors,
2023 WL 387572, at *4. The parties have not meaningfully
briefed the potential unenforceability of the closing letter due
to the withdrawal of the Proposed Consent Judgment, and both
parties agree that “[t]he key question is . . . whether DOJ’s
promise [in the closing letter] to close the investigation and
rescind the CIDs left it free to resume the investigation and
reissue the CIDs based solely on its preference to do so.” NAR
Br. 14; see also Oral Arg. Tr. at 3:13–16, Nat’l Ass’n of
Realtors v. United States (No. 23-5065) (counsel for the
government stating that “[t]he question is whether in addition
to agreeing to close its investigation the Division made a
commitment not to reopen it. The answer is no.”).

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We therefore accept the parties’ apparent assumption that
the closing letter is a binding agreement that remains
enforceable, notwithstanding the withdrawal of the Proposed
Consent Judgment. See, e.g, NAR Br. 43 n.11; Oral Arg. Tr.
at 11:16–12:6. We adopt the framing of the dispute that is
advanced by the parties because “[i]n our adversarial system of
adjudication, we follow the principle of party presentation.”
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).
In other words, “we rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of
matters the parties present.” Greenlaw v. United States, 554
U.S. 237, 243 (2008).5
5 Nevertheless, we observe that the closing letter likely became
unenforceable when the Proposed Consent Judgment was lawfully
withdrawn because both documents were essential parts of the
parties’ settlement agreement: NAR agreed to enter the Proposed
Consent Judgment on the condition that DOJ issue the closing letter,
J.A. 126; and NAR contends that the terms of the closing letter are
in effect because it had begun performing its obligations under the
Proposed Consent Judgment “in reliance on the terms of the
settlement,” NAR Br. 8 (citing J.A. 23–24). The closing letter and
Proposed Consent Judgment thus do not appear to be severable. See
Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 85 (D.C. Cir. 2005)
(holding that an unenforceable term is severable from an agreement
if it is “not [] essential to a contract’s consideration” (citing
Restatement (Second) of Contracts § 184 (Am. L. Inst. 1981))
(additional citations omitted)). Moreover, we note that the closing
letter, viewed on its own, appears to be a unilateral promise
unsupported by consideration or partial performance, which
typically would be unenforceable as a matter of contract law. See
Restatement (Second) of Contracts § 71 (Am. L. Inst. 1981) (“To
constitute consideration, a performance or a return promise must be
bargained for.”).

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III.
As framed by the parties, the issue before us is narrow.
DOJ argues only that the plain language of the closing letter
does not bar it from reopening its investigation and issuing a
new CID regarding the Participation Rule and the Clear
Cooperation Policy. We agree.
A.
“Under general contract law, the plain and unambiguous
meaning of an instrument is controlling.” WMATA v.
Mergentime Corp., 626 F.2d 959, 960–61 (D.C. Cir. 1980).
Thus, if the text of the closing letter is unambiguous, “that is
the end of the matter” and we need not address the parties’
negotiation history or any other extrinsic evidence. Brubaker
v. Metro. Life Ins. Co., 482 F.3d 586, 590 (D.C. Cir. 2007);
Iberdrola Renewables, Inc. v. FERC, 597 F.3d 1299, 1304
(D.C. Cir. 2010).
The disputed language of the closing letter states:
[T]he Antitrust Division has closed its
investigation into [NAR’s] Clear Cooperation
Policy and Participation Rule. Accordingly,
NAR will have no obligation to respond to CID
Nos. 29935 and 30360 issued on April 12, 2019
and June 29, 2020, respectively.
J.A. 178.
The plain meaning of that provision is that DOJ closed its
then-pending investigation and relieved NAR of its obligation
to respond to two specifically identified CIDs. We discern no
commitment by DOJ — express or implied — to refrain from
either opening a new investigation or reopening its closed

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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. The words “close” and “reopen” are
unambiguously compatible. See Close, Merriam-Webster
Dictionary (“to bring to an end or period”); Reopen, Merriam-
Webster Dictionary (legal definition) (“to resume the
discussion or consideration of (a closed matter)” (emphasis
added)). Thus, DOJ’s decision to “reopen” the investigation
and to issue CID No. 3 was consistent with the closing letter’s
“plainly expressed intent.” M&G Polymers USA, LLC v.
Tackett, 574 U.S. 427, 435 (2015) (cleaned up).
Our interpretation of the operative language is supported
by another provision in the closing letter, as well as an
interpretive canon of construction. First, DOJ included a “no
inference” clause in the closing letter, which states that “[n]o
inference should be drawn . . . from the Division’s decision to
close its investigation into these rules, policies or practices not
addressed by the consent decree.” J.A. 178. That clause
confirms that DOJ did not intend to imply any additional terms
in the letter, such as one prohibiting a reopened investigation.
Second, the unmistakability principle, a canon of construction,
instructs that “a contract with a sovereign government [should]
not be read to include an unstated term exempting the other
contracting party from the application of a subsequent
sovereign act . . . , nor [should] an ambiguous term of a grant
or contract be construed as a conveyance or surrender of
sovereign power.” United States v. Winstar Corp., 518 U.S.
839, 878 (1996) (plurality op.). In other words, we will not
interpret a contract to cede a sovereign right of the United
States unless the government waives that right unmistakably.
The closing letter contains no “unmistakable term” ceding
DOJ’s power to reopen its investigation: To the contrary, it
includes a “no inference clause” that explicitly disclaims any

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intent to include unstated terms. We therefore decline to read
an unwritten term into the agreement that limits the
government’s prosecutorial authority. Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 148 (1982).6
We note that NAR should not have been misled by the
words used in the closing letter because investigations are
routinely “closed” and then later “reopened.” For example, in
Schellenbach v. SEC, the National Association of Securities
Dealers (“NASD”), a self-regulatory organization,
“reopen[ed]” a securities-law investigation after initially
issuing a letter “signaling the end of [its] investigation.” 989
F.2d 907, 909–11 (7th Cir. 1993). The Seventh Circuit held
that “even if the . . . letter signaled that the NASD had closed
its investigation of [the petitioner], the NASD was perfectly
free to reconsider the matter.” Id. at 911. In fact, the court
found no “support [for] the proposition that the NASD may not
reopen [the] investigation” following the issuance of the
closing letter. Id. Although NAR distinguishes Schellenbach
by arguing that the letter in that case was not part of a contract,
6 Although the government did not raise the unmistakability
principle before the district court, that principle cannot be forfeited
because it is a “canon of contract construction.” Winstar, 518 U.S.
at 860. We can consider “interpretive canons” even if a party
“intentionally left them out of [its] brief.” Guedes v. BATFE, 920
F.3d 1, 22 (D.C. Cir. 2019) (per curiam). But even if the doctrine
were forfeitable, it was not forfeited here because NAR itself put the
doctrine at issue before the district court in citing an Office of Legal
Counsel opinion discussing Winstar and the rule against waiver of
sovereign power. See Resp. to the Gov’t’s Opp. to NAR’s Pet. 3,
Nat’l Ass’n of Realtors v. United States, Civ. No. 21-02406 (D.D.C.
Nov. 12, 2021), ECF No. 21-2 (citing Auth. of the U.S. to Enter
Settlements Limiting the Future Exercise of Exec. Branch Discretion,
23 Op. OLC 126 (June 15, 1999)). NAR therefore cannot claim to
be surprised by our consideration of the unmistakability principle.

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that fact does not cast doubt on our conclusion that the plain
meaning of the word “close” does not preclude DOJ from
“reopening” its investigation.
Investigations initiated by the government are no different.
For example, in Marinello v. United States, the Supreme Court
noted that between 2004 and 2009, the IRS “opened, then
closed, then reopened an investigation into the tax activities of
Carlo Marinello.” 138 S. Ct. 1101, 1105 (2018). And in
J. Roderick MacArthur Foundation v. FBI, we emphasized that
the FBI had an interest in retaining certain intelligence it had
gathered because “information that was once collected as part
of a now-closed investigation may yet play a role in a new or
reopened investigation.” 102 F.3d 600, 604 (D.C. Cir. 1996);
see also Senate of the Commonwealth of P.R. on Behalf of
Judiciary Comm. v. DOJ, 823 F.2d 574, 586 (D.C. Cir. 1987)
(noting that a “DOJ investigation . . . was closed officially on
April 16, 1980, and did not reopen until August 1983”).
In sum, the closing letter unambiguously permits DOJ to
reopen its investigation of the Participation Rule and the Clear
Cooperation Policy. Our interpretation is supported by the
letter’s plain language, its inclusion of the “no-inference”
clause, and our application of the unmistakability principle.
B.
NAR’s counterarguments do not persuade us. As a textual
matter, NAR argues that we should adopt the district court’s
reasoning that, in plain English, “[o]pening an investigation is
the opposite of closing one.” Nat’l Ass’n of Realtors, 2023 WL
387572, at *4. Based on that logic, the district court held that
reopening the investigation of the disputed policies violated
DOJ’s promise to close it. See id. As discussed above, the
words “close” and “reopen” are not mutually exclusive, and we
reject NAR’s argument that the closing letter imposed any

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future obligation on DOJ. Rather, the letter stated only that
“NAR will have no obligation to respond” to the CIDs
identified in the closing letter — namely, “CID Nos. 29935 and
30360 issued on April 12, 2019 and June 29, 2020,
respectively.” J.A. 178.
NAR also analogizes the closing letter to a parent
instructing a child to “close the door when you leave for
school,” arguing that the parent “would surely feel
misunderstood if the child closed the door and then
immediately reopened it before departing for the day.” NAR
Br. 22 (citing Biden v. Nebraska, 143 S. Ct. 2355, 2376–82
(2023) (Barrett, J., concurring)). But a hypothetical parent
instructing a child to “close the door when you leave for
school” does not intend that the child never open the door
again, and the approximately eight months that elapsed
between the issuance of the closing letter and the reopening of
the investigation do not factually support a claim of an
“immediate” reopening.
Next, NAR urges us to consider extrinsic evidence to
support its interpretation of the closing letter. Specifically,
NAR relies on the parties’ negotiating history, DOJ’s “course
of performance,” and NAR’s own priorities and incentives to
support its argument that DOJ agreed not to “reopen” the
investigation of the Participation Rule and Clear Cooperation
Policy. Those arguments have no traction because, as we have
discussed, we do not consider extrinsic evidence where the
plain text of an agreement is unambiguous. See NRM Corp. v.
Hercules, Inc., 758 F.2d 676, 682 (D.C. Cir. 1985) (“Only if
the court determines as a matter of law that the agreement is
ambiguous will it look to extrinsic evidence of intent to guide
the interpretive process.”); Iberdrola, 597 F.3d at 1304. In any
event, NAR’s extrinsic evidence is unconvincing.

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First, NAR asserts that the parties’ agreement to omit any
mention of the Participation Rule and Clear Cooperation Policy
in the Proposed Consent Judgment “make[s] clear that DOJ’s
promise in the Closing Letter was a deliberate carveout from
the reservation-of-rights provision in the consent decree.”
NAR Br. 25. But the text of the Reservation of Rights clause
supports DOJ’s position that it retained the right to investigate
the Participation Rule and the Clear Cooperation Policy: The
clause generally preserves the government’s authority to
investigate and bring actions “concerning any Rule or practice
adopted or enforced by NAR or any of its Member Boards.”
J.A. 176 (emphasis added). Moreover, during the parties’
negotiations, DOJ explicitly declined to accept any agreement
that constrained future investigations — and did so on three
separate occasions.7 Thus, the negotiating history of the
Reservation of Rights provision is inconclusive.
Second, NAR contends that DOJ’s “course of
performance” — i.e., its eventual withdrawal of the Proposed
Consent Judgment — demonstrates that DOJ “understood that
the Closing Letter ‘prevented’ it from investigating NAR’s
Participation Rule and Clear Cooperation Policy.” NAR
7 First, when NAR requested that DOJ “stipulate that NAR’s
Participation Rule would not be subject to further investigation any
time in the next ten years,” J.A. 247, DOJ responded that any
“commitment to not challenge NAR rules and policies in the future,”
was “a nonstarter.” Id. at 248. Second, when NAR proposed that
“any changes to the Participation Rule and/or the Clear Cooperation
Policy . . . will completely address all of the Division’s concerns and
that the Division will close its investigation,” id. at 251, DOJ again
responded that “we cannot commit to never challenge NAR rules and
policies in the future.” Id. at 252. And third, when DOJ agreed to
send NAR a closing letter, it reiterated that “the Division cannot
commit to never investigating or challenging NAR’s rules and
policies in the future.” Id. at 259.

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Br. 28. According to NAR, DOJ withdrew the Proposed
Consent Judgment because it wished to reopen its investigation
of those policies but recognized that it could not do so without
modifying the overall settlement agreement. But we decline to
allow NAR to take contradictory positions with respect to the
relationship between the Proposed Consent Judgment and the
closing letter. NAR may not implicitly assume that these are
separate agreements such that the closing letter remained
enforceable despite the withdrawal of the Proposed Consent
Judgment, see supra note 5, while also arguing that the two
documents were part of the same settlement agreement for
purposes of interpreting the meaning of the closing letter.
“Simply put, [NAR] cannot have it both ways.” See United
States v. Philip Morris USA Inc., 840 F.3d 844, 853 (D.C. Cir.
2016) (rejecting defendant’s contradictory positions about the
effect of a district court order); Nat’l Ass’n of Crim. Def. Laws.,
Inc. v. DOJ, 182 F.3d 981, 985 (D.C. Cir. 1999) (noting that “a
party may not blow hot and cold” in taking inconsistent
positions).
Lastly, NAR argues that it would not have agreed to the
Proposed Consent Judgment without a commitment from DOJ
not to investigate the Participation Rule and the Clear
Cooperation Policy in the future. According to NAR, without
such a commitment, “the agreement contemplated only a letter
worth nothing but the paper on which it was written.” NAR
Br. 24 (quoting Nat’l Ass’n of Realtors, 2023 WL 387572,
at *4). We disagree. Contrary to NAR’s contention, NAR
gained several benefits from the closing of DOJ’s pending
investigation in 2020. Most obviously, NAR was relieved of
its obligation to respond to the two outstanding CIDs, which
required the production of substantial information. Moreover,
NAR gained some value from the possibility that DOJ would
not reopen its investigation at all, or for a substantial period of
time. In addition, NAR avoided the risk that its responsive

-- 17 of 34 --

18
documents would be publicized in conjunction with a potential
future complaint filed by DOJ.
Significantly, NAR also used the closing letter to its
advantage in other, private litigation that was pending when the
closing letter was negotiated and issued. Plaintiffs in the
private litigation asserted claims under the Sherman Act and
California’s Cartwright Act, stemming from NAR’s adoption
of the Clear Cooperation Policy. See PLS.com, LLC v. Nat’l
Ass’n of Realtors, 32 F.4th 824, 831 (9th Cir. 2022). One day
after DOJ issued the closing letter, NAR submitted the letter to
the court presiding over the private litigation as evidence that
DOJ was no longer investigating NAR’s policy. See NAR’s
Response to Plaintiff’s Notice of Supplemental Authority at
Ex. B, PLS.com, LLC v. Nat’l Ass’n of Realtors, 516 F. Supp.
3d 1047 (C.D. Cal. 2021) (Case No. 2:20-cv-04790), ECF No.
88 (filed on Nov. 20, 2020). NAR’s filing asserted that “for
the Clear Cooperation Policy at issue in [the private litigation],
on the same day it commenced the Tunney Act proceedings,
the Department of Justice sent NAR a closing letter, attached
hereto as Exhibit B, . . . ‘clos[ing] its investigation into the . . .
Clear Cooperation Policy and Participation Rule.’” Id. at 1
(quoting J.A. 178). NAR thus used the closing letter to bolster
its litigating position in the private lawsuit, thereby plainly
benefitting from the letter’s issuance.
C.
We agree with our dissenting colleague that DOJ promised
to “close” its investigation of the Participation Rule and Clear
Cooperation Policy, in exchange for NAR’s concessions
regarding four other policies, embodied in the Proposed
Consent Judgment. See Dissenting Op. at 1–2. But the dissent
goes on to assert that it would be a violation of the settlement
agreement if DOJ “immediately” reopened the investigation it

-- 18 of 34 --

19
had agreed to close, while NAR was still bound by the contract.
Id. at 1 (emphasis in original); see also id. at 5 n.7 (“So as DOJ
sees things, it had the right to reopen the investigation
(immediately) even if the contract remained in force.”). We
take no position on the hypothetical situation addressed by the
dissent. In the case before us, DOJ exercised its option to
withdraw the Proposed Consent Judgment, thereby releasing
NAR from its obligations under the agreement; only then did
DOJ reopen its investigation and issue a new CID for
information related to the Participation Rule and Clear
Cooperation Policy — and that reopening occurred eight
months after the original settlement agreement was reached.
Because the reopening was not “immediate” and there was
never a time when NAR was bound by the settlement
agreement while DOJ was not, the dissent’s analysis is
inapposite.8
8 As we have noted, supra pp. 9–10 & n.5, we confined our
opinion to the meaning of the closing letter, as the parties asked us
to do. The dissent, however, interprets the overall settlement
agreement, including the quid pro quo in which NAR signed the
Proposed Consent Judgment in exchange for DOJ’s issuance of the
closing letter. See generally Dissenting Op. As we explained, supra
note 5, consideration of the overall agreement would likely lead to
the conclusion that DOJ’s withdrawal from the Proposed Consent
Judgment had the effect of canceling the entire deal — i.e., the
closing letter would not be enforceable if the Proposed Consent
Judgment were withdrawn because the two components of the
agreement are not severable. DOJ, however, chose not to rely on that
argument, and instead asked us to interpret the language in the
closing letter as if it were enforceable. See supra pp. 9–10 & n.5;
Oral Arg. Tr. at 11. The dissent apparently misunderstands DOJ’s
position — it transforms DOJ’s decision not to argue that both parts
of the deal were canceled into a concession that the court may
interpret the overall settlement agreement while ignoring DOJ’s
withdrawal from the Proposed Consent Judgment. See Dissenting

-- 19 of 34 --

20
The dissent contends that DOJ “unilaterally reneged” on
the settlement agreement, and states that “[for] purposes of this
appeal, it doesn’t matter that DOJ withdrew the consent decree
when it reopened the investigation.” Dissenting Op. at 3 & n.5.
Those statements overlook that NAR agreed to the term of the
settlement agreement that gave DOJ the unfettered right to
withdraw its consent at any time. See J.A. 147. When DOJ
exercised that option, it put the parties back to where they were
before they entered the settlement — i.e., it restored the status
quo ante. Thus, DOJ did nothing nefarious or underhanded
when it withdrew from the settlement, as NAR had agreed it
could do.
Finally, we cannot agree with the dissent that “the sole
question [in this appeal] is whether DOJ is correct that it could
have immediately reopened its investigation of the Realtors’
two remaining policies after contracting to close that
investigation.” Dissenting Op. at 4. As the dissent
acknowledges, the facts before us do not demonstrate an
“immediate” reopening of the investigation after it was closed.
See id. at 3 (stating that “about eight months after contracting
to close its investigation into the two remaining policies, DOJ
reopened the investigation”). We therefore have no occasion
to consider that scenario and we decline to opine on whether
such conduct by DOJ would constitute a breach of the
agreement.
Op. at 5 n.7 (“DOJ disavowed the argument that its unilateral
withdrawal had anything to do with this case.”); id. (“So as DOJ sees
things, it had the right to reopen the investigation (immediately) even
if the contract remained in force.”).

-- 20 of 34 --

21
* * *
For the foregoing reasons, we reverse the judgment of the
district court and remand for further proceedings consistent
with this opinion.
So ordered.

-- 21 of 34 --

WALKER, Circuit Judge, dissenting: The National Association
of Realtors made a contract with the Antitrust Division of the
Department of Justice. As in every contract, each side gained
something, and each side gave something up. The Realtors
agreed to give up four policies that DOJ considered
anticompetitive. In exchange, DOJ promised that it had
“closed” its investigation into two other policies.
DOJ doesn’t deny that it made a contract. Nor is there any
dispute about what it gained. Instead, the sole question is —
what did DOJ give up when it “closed” the investigation?
Nothing, if we believe DOJ. As it sees things, it could
immediately reopen its investigation because anything “closed”
can be reopened at any time.
No court identified by DOJ has endorsed such a reading.
Nor should we. Because DOJ misreads one isolated word
(“closed”) to nullify what the Realtors gained from an
otherwise comprehensive and comprehensible contract, I
respectfully dissent.
I
In 2019, the Antitrust Division of the Department of
Justice opened a civil investigation into the National
Association of Realtors’ policies. In 2020, several months into
the investigation, each side came to the bargaining table. DOJ
identified six policies that it wanted changed. The Realtors
expressed a willingness to change four of them. But the
Realtors repeatedly insisted that they would “not agree” to
change those four policies “without prior written assurances”
that DOJ “has closed its investigation” into the other two. JA
109 (Realtors expressing these demands via email to DOJ); see

-- 22 of 34 --

2
also JA 126 (Realtors attaching these demands to DOJ’s draft
reservation of rights provision).1
Eventually, DOJ decided that securing changes to the four
anticompetitive policies outweighed the risks of bringing a
lawsuit that might change none if DOJ took the case to court
and lost.2 So DOJ finally acquiesced to the Realtors’ demand.
And with that, they had a deal.
The parties captured their deal in a settlement agreement.
The agreement detailed the extensive changes the Realtors
would need to immediately undertake. JA 165-74.3 As for
DOJ’s promise to close, one page of the agreement stated:
[T]he Antitrust Division has closed its
investigation into the [two remaining policies].
Accordingly, [the Realtors] will have no
obligation to respond to [two Civil Investigative
Demands regarding those two remaining
policies].
1 When describing what happened in 2019 and 2020, I will refer to
the government as “DOJ” or “the Antitrust Division of the
Department of Justice,” rather than DOJ’s preferred nomenclature:
“the previous leadership of the Division.” DOJ Br. at 11.
2 Cf. United States v. United States Sugar Corp., 73 F.4th 197 (3d
Cir. 2023) (failed DOJ civil antitrust suit); United States v.
UnitedHealth Group Inc., 630 F. Supp. 3d 118 (D.D.C. 2022)
(same); United States v. Booz Allen Hamilton Inc., No. CCB-22-
1603, 2022 WL 16553230 (D. Md. Oct. 31, 2022) (same).
3 This portion of the settlement agreement is called the “consent
decree.”

-- 23 of 34 --

3
JA 178 (emphasis added).4
With that agreement in place, the Realtors immediately
began to comply. But unexpectedly, DOJ later insisted on
modifying the agreement. When the Realtors refused, DOJ
unilaterally reneged. In July 2021, about eight months after
contracting to close its investigation into the two remaining
policies, DOJ reopened the investigation.5
The Realtors sued, arguing that the reopened investigation
is not what they bargained for. National Association of
Realtors v. United States, No. 21-2406, 2023 WL 387572, at
*2 (D.D.C. Jan. 25, 2023). The district court agreed with the
Realtors. It explained that the “government, like any party,
must be held to the terms of its settlement agreements.” Id. at
*5; cf. United States v. Lee, 106 U.S. 196, 220 (1882) (“No man
in this country is so high that he is above the law.”). It also
noted that “the government itself understood the broader
settlement to require closure of the investigation” — a
“common-sense interpretation of the parties’ settlement” that
DOJ does not dispute. National Association of Realtors, 2023
WL 387572, at *4. So, as the district court said, “it is not hard
4 This portion of the settlement agreement is called the “closing
letter.”
5 For the purposes of this appeal, it doesn’t matter that DOJ withdrew
the consent decree when it reopened the investigation. See Maj. Op.
at 16-17 (rejecting course of performance arguments in this case).
That’s because the contract’s meaning depends on what it
unambiguously says, not on what happened eight months after its
formation. And as DOJ repeatedly insists, the meaning of “closed”
at the time of contract formation is the sole issue before the Court.
See infra n.6.

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4
to conclude that the new [reopening] violates the agreement.”
Id.
DOJ appealed.
II
The question presented is not whether DOJ’s promise to
close an investigation means the investigation must stay closed
forever. Nor is the question whether DOJ can reopen an
investigation eight months after it contracts to close it, as DOJ
did here. Rather, the sole question is whether DOJ is correct
that it could have immediately reopened its investigation of the
Realtors’ two remaining policies after contracting to close that
investigation.6
6 DOJ readily admits that this is its one and only argument. See Oral
Arg. Tr. at 4 (Question: “If we disagree with you about [the meaning
of closed], do you have another theory where you can win; or do you
concede that’s the case?” DOJ: “That is our theory in this Court
which is that when the Antitrust Division made the commitment to
close, that did not apply any additional commitment to refrain from
reopening, and that’s clear throughout the record.”); id. at 8
(Question: “[D]o you have any concern that what DOJ is doing here
will make it harder for future DOJs to convince parties in [the
Realtors’] shoes that when DOJ says it will close an investigation, it
will stay closed for more than a half minute?” DOJ: “No, because
we made clear throughout the process that we weren’t making that
commitment.”); id. at 12 (Question: “So, you’re just relying on your
interpretation of the closing letter[?]” DOJ: “Correct. Correct.”); see
also DOJ Reply Br. at 8 (arguing that DOJ is permitted to reopen
investigations “at any time”).

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5
Because DOJ’s sole argument is wrong, I would affirm the
district court on the narrow grounds presented to us by DOJ’s
appeal.7
7 Some readers may wonder, “Should DOJ lose just because their
only argument is unpersuasive?” Yes. “But shouldn’t they win if
we can come up with a winning argument for them?” Not usually,
and not here. “We adopt the framing of the dispute that is advanced
by the parties because ‘in our adversarial system of adjudication, we
follow the principle of party presentation.’” Maj. Op. at 10 (quoting
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020))
(cleaned up).
Here’s what that means: DOJ disavowed the argument that its
unilateral withdrawal had anything to do with this case. Oral Arg.
Tr. at 11 (Question: “And it seems to me that there is a plausible
argument that this closing letter, if it’s part of an overall agreement
that included the consent decree, was withdrawn when the consent
decree was withdrawn. Are you not making that argument?” DOJ:
“We’re not pressing that argument as a standalone argument
here . . . .”). So any arguments about unilateral withdrawals don’t
matter — even if they might otherwise have been winning ones. See
Maj. Op. at 9 (“The parties have not meaningfully briefed the
potential unenforceability of the closing letter due to the withdrawal
of the Proposed Consent Judgment . . . .”). But see id. at 19 (“In the
case before us, DOJ exercised its option to withdraw the Proposed
Consent Judgment, thereby releasing [the Realtors] from [their]
obligations under the agreement . . . eight months after the original
settlement agreement was reached. Because the reopening was not
‘immediate’ and there was never a time when [the Realtors were]
bound by the settlement agreement while DOJ was not, the dissent’s
analysis is inapposite.”).
So as DOJ sees things, it had the right to reopen the investigation
(immediately) even if the contract remained in force. That is the only
argument DOJ made on appeal. See supra n.6. And if that argument
isn’t a winner, DOJ’s appeal can’t be a winner. But see Maj. Op. at
20 (“Finally, we cannot agree with the dissent that ‘the sole question
[in this appeal] is whether DOJ is correct that it could have

-- 26 of 34 --

6
A
Let’s start with some common ground. DOJ says “closed”
and “reopen” are not mutually exclusive. And sometimes
that’s true. In the abstract, a promise to close something does
not always include a promise to keep it closed forever.
But this abstract understanding of “closed” and “reopen”
is only the starting point of our analysis. That’s because
“context matters.” Caraco Pharmaceutical Laboratories, Ltd.
v. Novo Nordisk A/S, 566 U.S. 399, 414 (2012). And
depending on the context, a promise to close something might
mean the closer cannot immediately reopen it. See Oral Arg.
Tr. at 6 (DOJ: “context is critical”).
A hypothetical presented by the Realtors illustrates the
point. Consider the following:
A parent tells a child,
“Close the door.”
Without context, we can’t know when the child may
reopen the door. Read literally, the child may close the door
and then immediately reopen it. But a “good textualist is not a
literalist.” See Antonin Scalia, A Matter of Interpretation 24
(1997). So to know more, we need context.
Now imagine:
A parent says,
“Close the door when you leave for school.”
immediately reopened its investigation of the Realtors’ two
remaining policies after contracting to close that investigation.’”).

-- 27 of 34 --

7
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 he runs toward the school bus and
mockingly calls back, “You didn’t say to keep it closed!” But
an obedient child would not.
We encounter situations like this all the time, both in life
and the law. Consider the following:
A gate agent tells a late passenger,
“Sorry, I’ve closed the jet bridge.”
A sign on a barricade says,
“Road Closed.”
The late passenger understands that the gate agent means,
“I’ve closed the jet bridge and I won’t reopen it for your flight.”
And if the “Road Closed” sign is on Glacier Park’s Going-to-
the-Sun Road in December, the sign means the road ahead is
closed for the rest of the season. As these examples illustrate,
“ultimately, context determines meaning.” Caraco, 566 U.S.
at 413-14 (cleaned up); see also Biden v. Nebraska, 143 S. Ct.
2355, 2378 (2023) (Barrett, J., concurring) (“To strip a word
from its context is to strip that word of its meaning.”).
So to sum up, I accept DOJ’s abstract contention that
“closed” and “reopen” are sometimes compatible. But because
“context may drive such a statement in either direction,” a
promise to close something may at times preclude an
immediate reopening. Pulsifer v. United States, 601 U.S. at __
(2024) (slip op. at 12 n.5). “Really, it all depends.” Id. at __
(slip op. at 15).

-- 28 of 34 --

8
B
By context, I mean the rest of the contract’s text. And
here, the text suggests a quid-pro-quo bargain that precludes
DOJ’s sole argument.8
Start with the terms of the quid pro quo. The quid was
DOJ’s closure of its investigation into the two remaining
policies, promised in the one-page “closing letter” portion of
the contract. The quo was the Realtors’ surrender of the four
anticompetitive policies. That surrender was described in
painstaking detail across 15 pages. For example, the agreement
required the Realtors to immediately “undertake certain actions
and refrain from certain conduct for the purpose of remedying
the anticompetitive effects” of the four policies. JA 162. The
agreement then listed the Realtors’ “prohibited conduct,”
“required conduct,” “antitrust compliance,” and requirements
for “compliance inspection.” JA 165-74 (cleaned up).
Read together, it’s apparent from the four corners of the
contract that the Realtors’ extensive commitments about the
four anticompetitive policies came at a cost to DOJ, and this
8 I do not rely on extrinsic evidence outside the contract’s four
corners because “closed” is unambiguous when read in context. See
Iberdrola Renewables, Inc. v. FERC, 597 F.3d 1299, 1304 (D.C. Cir.
2010) (“If a contract is not ambiguous, extrinsic evidence cannot be
used as an aid to interpretation.”) (quoting Consolidated Gas
Transmission Corp. v. FERC, 771 F.2d 1536, 1544 (D.C. Cir. 1985)).
In any event, the extrinsic evidence is something of a wash. DOJ
said it would never promise what the Realtors wanted, and the
Realtors said they would never settle without that promise — so the
extrinsic evidence just tells us that someone was bluffing. See Maj.
Op. at 4-5, 15-18.

-- 29 of 34 --

9
bargained-for cost is the context that must inform the meaning
of “closed.”9
So when properly read in the context of the entire
comprehensive agreement, DOJ’s promise to close is best
understood to mean:
DOJ has closed its investigation into two
remaining policies in exchange for the Realtors’
promise to change four anticompetitive policies.
I again emphasize “in exchange for” — the pro in quid pro
quo — because the nature of the parties’ exchange is what
moves us beyond abstract propositions like “[t]he words ‘close’
and ‘reopen’ are unambiguously compatible.” Maj. Op. at 12.
When construing one side’s promise in a quid pro quo, we
“avoid constructions of contracts that would render promises
illusory.” M & G Polymers USA, LLC v. Tackett, 574 U.S. 427,
440 (2015). And here, that fundamental and well-settled
contract principle means we must construe “closed” to preclude
“immediately reopen.” See, e.g., Irwin v. United States, 57
U.S. 513, 519 (1853) (our “court can make no new contract for
the parties”).
This reading is also entirely logical. In any bargain, you
give up something in order to get something in return. That’s
what separates a contract from a commandment, and a
compromise from a ukase. See Appalachian Power Co. v.
9 Recall that none of the following contextual points are disputed:
The settlement agreement is a binding contract. Maj. Op. at 9. The
contract includes DOJ’s letter promising to close its investigation
into the two remaining policies. Id. And DOJ’s promise to close the
investigation was in exchange for the Realtors’ promise to change
the four anticompetitive policies. Id. at 5-6.

-- 30 of 34 --

10
EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (a provision “reads
like a ukase” because it “commands,” “requires,” “orders,” and
“dictates”). So both sides of the exchange in this agreement
must have real meaning.
Under the Realtors’ reading, both do: The Realtors gave
up something (the four anticompetitive policies) to get
something (non-illusory relief from DOJ’s investigation into
the two remaining policies). In contrast, DOJ’s reading invests
one side of the exchange with no real meaning at all. It says
that the Realtors gave up something (a lot, actually) in
exchange for nothing more than a promise by DOJ to close an
investigation it could immediately reopen — in other words,
for a promise “worth nothing but the paper on which it was
written.” National Association of Realtors v. United States,
No. 21-2406, 2023 WL 387572, at *4 (D.D.C. Jan. 25, 2023).
C
Several counterarguments were made in DOJ’s brief and
by its exceptionally able counsel at oral argument. But none
can change this bottom line: DOJ needs you to believe that the
Realtors gave away something for nothing.
First, DOJ says the Realtors actually did benefit from DOJ
closing the investigation, including from the inertia that kept it
closed for eight months. Sure, but DOJ isn’t arguing for an
eight-month rule; rather, it argues that it can reopen a closed
investigation immediately. The Realtors would have received
no benefit from that. So DOJ’s theory still depends on reading
its promise as meaningless — a reading prohibited by basic
contract principles. See M & G Polymers USA, 574 U.S. at
440; Irwin, 57 U.S. at 519.

-- 31 of 34 --

11
Second, DOJ cites other cases where the government
reopened investigations that it previously closed. See Maj. Op.
at 13-14. But DOJ has not cited a single precedent allowing it
to reopen an investigation after contracting to close it in
exchange for consideration. It relies instead on immaterial
precedents about unilateral promises, not binding contracts.
See Marinello v. United States, 584 U.S. 1 (2018) (describing
no settlement negotiations whatsoever); J. Roderick
MacArthur Foundation v. FBI, 102 F.3d 600 (D.C. Cir. 1996)
(same); Schellenbach v. SEC, 989 F.2d 907, 910 (7th Cir. 1993)
(“Petitioner and NASD officials discussed a settlement, but
they could not agree”).10
Third, DOJ cites the “unmistakability” principle. It
disfavors interpretations that “cede a sovereign right of the
United States unless the government waives that right
unmistakably.” Maj. Op. at 12. But that principle doesn’t
apply here where DOJ did unmistakably cede its right to
immediately reopen its investigation into the two remaining
policies — for the reasons explained above.
Finally, DOJ points to a sentence in one part of the
settlement agreement that states: “No inference should be
drawn” from DOJ’s “decision to close its investigation into
these rules, policies or practices not addressed by the consent
decree.” JA 178.11
10 See also Oral Arg. Tr. at 29 (Question: “[C]an you point me to a
precedent where the Government has made a promise in exchange
for consideration to close an investigation and the Court has said that
the Government can reopen the investigation?” DOJ: “Not in a case
where we made a promise to do it . . . .”).
11 Recall that the consent decree described the Realtors’ contractual
obligations.

-- 32 of 34 --

12
That sentence provides no answer to the one question in
this case: Whether DOJ promised to refrain from immediately
reopening its “closed” investigation (not whether we should
“infer[ ]” something beyond that promise). Once we identify
the scope of DOJ’s promise, then “under the law of contract
[DOJ] was not free to unilaterally change the terms of the
settlement agreement by adding an ambiguous sentence to a
letter designed to simply confirm that it had upheld its side of
the deal.” National Association of Realtors, 2023 WL 387572,
at *5.
So much for what DOJ’s “ambiguous sentence” did not
do. As for what it did do, consider that several of the Realtors’
policies were being challenged in court by third parties seeking
a class action verdict in excess of a billion dollars.12 The
“ambiguous sentence” is best read to “inform third parties that
the government had not found one way or the other that the
[two remaining policies] were lawful.” Id. That message — if
you want to keep suing the Realtors yourselves, go for it —
does not conflict with DOJ’s promise not to immediately
reopen its own “closed” investigation.
12 See Burnett v. National Association of Realtors, 19-cv-0332, ECF
1294 (W.D. Mo. Oct. 31, 2023) (jury verdict awarding class
plaintiffs approximately $1.79 billion in damages against all
defendants); National Association of Realtors, National Association
of Realtors Reaches Agreement to Resolve Nationwide Claims
Brought by Home Sellers (Mar. 15, 2024), https://perma.cc/86TR-
YBRD (Realtors announcing a $418 million settlement of the class
claims against them); Burnett, 19-cv-0332, at ECF 1399-1 (W.D.
Mo. Mar. 18, 2024) (judgment accepting the settlement).

-- 33 of 34 --

13
* * *
The Antitrust Division of the Department of Justice
bargained for a binding contract. That bargain required DOJ to
close an investigation, and it did not allow DOJ to immediately
reopen the “closed” investigation. In arguing otherwise, DOJ
has invited our court to go where no court has gone before —
or at least no court identified by DOJ.
For the sake of DOJ’s credibility, I wish it had not done
so. And for the sake of citizens who find themselves on the
other side of the bargaining table, I wish our court had not
agreed.13
After today, behind the facade of its promise to close an
investigation, the government can lure a party into the false
comfort of a settlement agreement, take what it can get, and
then reopen the investigation seconds later.
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.
13 Cf. Makan Delrahim, Assistant Attorney General, Antitrust
Division of the Department of Justice, Remarks at Bocconi
University in Milan (May 25, 2018), https://perma.cc/8EBM-DJFU
(“To ensure that businesses can enter contracts, make investments,
and plan for the future, we must provide a stable and predictable
environment that is free of arbitrary government action and
characterized by transparent and fair procedures.”).

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