Last week, I wrote an article about the settlement reached by the National Association of REALTORS® in pending litigation concerning buyer agency compensation. This includes the “Sitzer” (now Burnett), “Moehrl,” and “MLS PIN” suits, among others. As mentioned, this is an early stage in the process; the settlement agreement, although agreed upon by the parties involved, has not yet been filed with the court. Given these are large class action lawsuits alleging antitrust violations, numerous hurdles must be overcome. These could necessitate changes to the settlement terms on the path to court approval—if the court approves it at all.
Hurdles include the court holding a fairness hearing to assess if the proposed settlement is fair, reasonable, and adequate for class members. This hearing allows class members to express objections and concerns. Moreover, antitrust class action lawsuits like this one, which impact market competition and consumer protection, prompt the court to consider broader public interest implications when approving settlements. This attention often draws input from professional associations, consumer organizations, and, as seen in the MLS PIN suit, the United States, giving their opinion on the settlement’s sufficiency.
Ultimately, the decision rests with the judge, who will consider all these aspects.
I should have led with this, but I am not an attorney, and this is not legal advice. As a real estate broker with over four decades in the residential real estate industry, I have a keen interest in the legal facets of our business and the issues at hand, closely following these cases since 2019. I’m a staunch advocate for transparency and education for real estate professionals, clients, and everyone involved. The more accurate knowledge consumers have about buying and selling a home, the better choices they can make. This is especially true when selecting a real estate agent, as not all are created equal.
Back to the matter at hand.
What will the DOJ say about the NAR Settlement?
Assuming the Department of Justice files an amicus brief in this case, as they did with MLS PIN—a safe assumption, in my view—it’s intriguing to speculate on their comments regarding this settlement. While I lack a crystal ball or insider information, considering the DOJ’s Statement of Interest filed on February 15, 2024, in Nosalek V. MLS Property Information Network (MLS PIN), and assuming their opinion hasn’t shifted in the last five weeks, offers a logical foundation for analysis.
I sought an objective analysis from my trusty AI Assistant, which, for the sake of this discussion, is an outstanding attorney specializing in antitrust law (or at least that is what I’ve told it to think of itself as). Applying the DOJ’s recent statement to this settlement, here’s what it suggests the DOJ might say:
- Inadequate Address of Core Antitrust Concerns: The settlement’s proposed rule changes fail to resolve the fundamental antitrust issues raised in the complaint fully. While allowing $0 cooperative compensation offers and requiring commission negotiation disclosures, the continued practice of blanket unilateral compensation offers to buyer brokers by sellers and listing brokers could perpetuate steering risks and obstruct genuine price competition.
- Broad Release of Potential Antitrust Claims: The extensive release of antitrust claims against a wide range of parties, including NAR, REALTOR® associations, MLSs, and individual brokers and agents, is concerning. Given the settlement’s limited injunctive relief, this broad release might inadequately serve class members.
- Insufficient Monetary Relief: The $418 million settlement fund, potentially inadequate for the damages at issue, may not ensure compensation for class members after litigation expenses and attorney’s fees. The settlement lacks a clear mechanism for maximizing class member payouts.
- Potential Chilling Effect on Future Antitrust Challenges: The settlement could deter or complicate future anticompetitive practice challenges by immunizing modified rules from further scrutiny, making subsequent lawsuits more difficult.
- Comparison to MLS PIN Settlement: Despite more extensive practice changes than the MLS PIN agreement, the settlement doesn’t effectively address core antitrust concerns, marginally improving over the MLS PIN agreement.
In conclusion, despite offering more monetary relief and practice changes than the MLS PIN agreement, the settlement inadequately addresses fundamental antitrust issues. The court must weigh whether the settlement’s limited benefits justify the broad release of claims and the potential chilling effect on future antitrust enforcement. As in the MLS PIN case, a more effective remedy might prohibit the seller-paid buyer broker commission model, fostering genuine market competition.
This is all based on publicly available information. We must wait to see the DOJ’s stance and whether the judge deems the settlement adequate.
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