The Department of Justice (DOJ), through its Antitrust Division, initiated an investigation into NAR’s policies, which culminated in a settlement in November 2020. This settlement aimed to address four out of six policies identified by the DOJ as potentially anticompetitive. Crucially, it also included the issuance of a closing letter by the DOJ, indicating the closure of its investigation into two key NAR policies: the “Clear Cooperation Policy” and the “Participation Rule.” These policies relate to the operation of multiple-listing services (MLSs) and the commission structure within real estate transactions, respectively.
However, in a dramatic shift, the DOJ reopened its investigation into these policies in July 2021, leading to a legal challenge by NAR. NAR argued that the DOJ’s action breached the settlement agreement, which, in their view, included an implicit assurance against reopening the investigation into the specified policies.
The Appeals Court, in its decision, highlighted the legal nuances of the settlement agreement and the scope of the DOJ’s commitments. The court concluded that the settlement did not preclude the DOJ from reopening its investigation. This decision not only emphasizes the DOJ’s ongoing authority to regulate and scrutinize industry practices for anticompetitive behavior but also signals to real estate professionals the importance of adaptive compliance with evolving regulatory landscapes.
This ruling carries profound implications for the real estate industry, reinforcing the principle that regulatory oversight is a dynamic process, subject to revision and reassessment in light of new information or changing circumstances. For homebuyers and homesellers, the decision underscores the government’s commitment to ensuring fair and competitive practices within the real estate market, aiming to protect consumer interests and promote market transparency.
United States Court of Appeals Judgement – NAR vs United States of America
(click on image below to access entire judgment)
The Council of Multiple Listing Services (CMLS), representing over 200 Multiple Listing Services nationwide, has filed a brief supporting the settlement reached between the parties in the lawsuit against MLS Property Information Network (MLS PIN). While this is not the settlement announced last week by the National Association of REALTORS® (NAR), it involves one of the several lawsuits tied to the NAR settlement.
CMLS filed their brief in response to the one filed by the Department of Justice (DOJ) in February, which opposed the MLS PIN settlement, arguing that it did not go far enough to change existing practices to lower commissions and increase competition. In their brief, CMLS points to data showing that a similar rule change adopted by the Northwest Multiple Listing Service (NWMLS) in 2019 saved homebuyers an average of $1,000 per transaction by reducing buyer agent commissions.
The DOJ has opposed the MLS PIN settlement, asserting that it would not meaningfully benefit consumers. CMLS contends that the DOJ’s analysis is flawed and that its preferred solution – an outright ban on buyer agent compensation – could disrupt the real estate market and harm consumers.
It is doubtful that the judge will make a ruling in the MLS PIN case while the NAR settlement is pending. However, the briefs filed by the DOJ and CMLS in the MLS PIN lawsuit may have an impact on the decision regarding the NAR settlement.
CMLS Amicus Brief
(click to view entire brief)
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.
As I’ve previously discussed, the National Association of REALTORS¬Æ (NAR) is grappling with a myriad of challenges. These range from multiple class-action lawsuits to scrutiny from the Department of Justice (DOJ). This past week, the organization faced two more setbacks.
First, a scandal erupted involving NAR’s President, Kenny Parcell. Reports suggest that Parcell was accused of sexually harassing women within the organization. While this news began circulating about a week ago, it gained significant momentum when the New York Times published an expos√© last Saturday. The report prompted industry-wide calls for Parcell’s resignation. Consequently, Kenny Parcell stepped down as President of NAR yesterday. President-elect Tracy Kasper immediately assumed the role of President.
In another blow to NAR yesterday, the United States Court of Appeals for the Ninth Circuit overturned a lower court’s dismissal of a lawsuit. This lawsuit was filed by Top Agent Network, Inc., accusing NAR of violating the Sherman Antitrust Act through its “MLS Clear Cooperation Policy.”
Indeed, it’s been a challenging week for NAR, and it’s only Tuesday.”
Top Agent Network, Inc. v. National Association of REALTORS, et al Original Lawsuit
(click below for entire document)
Let me begin by saying that I’m not a sensationalist, nor am I an advocate for everything I write about. Additionally, I am not an attorney, so this not a legal opinion. I am simply a real estate broker that has been very active in the profession and industry for over 40 years now. I strive to stay on top of industry and market changes so that the agents in our firm, MORE, REALTORS®, and their clients can avoid surprises and be prepared. Another reason I do this is to share what I have learned with consumers. I believe that by sharing good, relevant and accurate information to consumers, they will be equipped to make better decisions when it comes to buying or selling real estate, including how to choose an agent to best represent them.
So, what is going to turn the real estate industry upside down?
Yes, I made a rather bold statement in my headline, but I believe it to be an accurate depiction of what is coming to the world of residential real estate, including right here in St Louis. The source of this disruption is not a single entity, but rather many. While there is a common theme to the multiple threats, they are coming from different sources. Over the past few months, I have written about all the issues I’m referring to, so below is a summary of them and links to the original articles:
- Moerhl v NAR Lawsuit. 3/22/2019 – This suit was filed against The National Association of REALTORS® (NAR), Realogy Holdings Corp, HomeServices of America, Inc, Re/Max Holdings, Inc and Keller Williams Realty, Inc. The suit alleges that the defendants were “conspiring to require home sellers to pay the broker representing the buyer of their homes, and to pay at an inflated amount, in violation of federal antitrust law.” At the heart of this claim is the NAR rule that requires sellers to offer compensation to the buyer’s agent in order to be eligible for listing in the MLS.
- Department of Justice (DOJ) Complaint against NAR. 12/01/2020. The DOJ filed a complaint against NAR, as well as a settlement agreement, focused on two primary issues; 1. Allowing buyer brokers to misrepresent to buyers that a buyer broker’s services are free; 2.Enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered and to exclude homes with lower commissions from consideration by potential home buyers;
In December I wrote about multiple class-action lawsuits filed against the National Association of REALTORS® (NAR), as well as some of the largest real estate brokerages, like ReMax and Keller Williams as well as a Department of Justice (DOJ) complaint filed again NAR over issues related to the lack of transparency in the home buying process.
The aforementioned complaints claim, among other things, that there has been an effort by the defendants to force buyers to pay an “inflated” price for a home as a result of the buyer not realizing the seller was forced to offer a commission to a buyer’s agent in order to get their listing in the MLS. In addition, they claim that NAR and its members misrepresented to buyers that a buyer’s agent’s representation and services were “free”, when in fact their agent was being paid a commission, which came from the seller and as a result, they claim this expense inflated the cost the buyer was forced to pay for the home.
I’m not here to address the accuracy of the claims made in these complaints nor get into an analysis of the legal merits of the case, but instead just want to address the changes I see that have already taken place or will take place in the home-buying process. NAR has already reached a settlement with the DOJ in which they (NAR) agreed to make several changes, so those are pretty easy to predict and I think I have a reasonable idea of some other changes that will come along in the comings months as well.
[xyz-ips snippet=”Homes-For-Sale”]
So, what are these changes I see coming to the home-buying process in terms of transparency?
Below are some of the changes I already see or expect to see:
- Buyer’s agents aren’t FREE, nor should they be. NAR has already agreed to prohibit their members from claiming their services are free as they are not. A good buyer’s agent is invaluable to a home buyer and not only will earn the commission they make but in many cases, will “pay for themselves”. What I mean by this is their guidance and advice to their clients, which comes from their knowledge of the market and process, as well as experience, will help their clients avoid pitfalls and to make informed, good decisions.
- Commission transparency. Prior to the lawsuits, many MLS’s around the country, including the one that serves the St Louis area, prohibited the amount of commission being offered to a buyer’s agent by the seller from being shown on broker’s real estate search websites. MARIS, the company that provides the MLS for St Louis area REALTORS® was quick and pro-active in this area and began allowing brokers to display buyer’s agent’s commission on their websites. I’m happy to say that my company, MORE, REALTORS® was, I believe, one of the first brokerages in the area to begin displaying this information. On STLMLS.com consumers can find the amount of commission being offered to buyer’s agents on listings. In the interest of full disclosure, I should mention I’m on the board of directors for MARIS and I’m an officer and shareholder of MORE, REALTORS.
- Sellers won’t have to offer to pay a buyer’s agent to get in the MLS. While the first two bullet-points above are things that have happened, now I’m predicting what will happen. I believe that soon, perhaps as soon as “months” or as long as a year or two, the MLS requirement that a seller offers compensation to a buyer’s agent to have their listing be in the MLS will be dropped. This is nothing that should cause panic as buyer’s agents won’t go away nor work for free, it’s just the structure of the transaction will change. The changes made will no doubt provide a much greater level of transparency to the buyer though as I believe they will have a clear picture of the process including how their buyer’s agent is getting paid.
- Agents won’t have to be REALTORS® to be part of the MLS. Even though this is already true in several parts of the country, most MLS’s require that agents be a REALTOR® (so be a member of the National Association of REALTORS® (NAR)) to join the MLS. I believe that all MLS’s in the country will be forced to allow participation by all licensed real estate brokers and agents and not just REALTORS®. I think my prior prediction will come to fruition sooner and this one will follow so it will likely be a couple of years at least before this happens.
The bottom line is some obstacles exist today for the real estate industry as well as there are changes taking place and more coming. While many folks don’t embrace change, call me a Pollyanna, but I think the result will be positive both for the real estate professional as well as the consumer that is buying or selling a home.
I’ll close with a quote on the topic of obstacles that I frequently share on a coaching session I do for our agents that is from Victor Kiam (the Remington razor guy) – “….there is little difference between obstacle and opportunity…”
The National Association of REALTORS® (NAR) has come under attack over the past few months as a defendant in two class-action lawsuits, Christopher Moehrl v The National Association of REALTORS® and Joshua A. Sitzer and Amy Winger v The National Association of REALTORS® filed in March and April of 2019 respectively, and, most recently, a complaint brought by the Department of Justice, United States v National Association of REALTORS® filed this month. The latter came with a pre-arranged proposed settlement with NAR. I should also mention the two class-action lawsuits have as additional defendants Realogy Holdings Corp (the own and operate several franchises, some of the local ones include Coldwell Banker-Gundaker, Better Homes & Gardens, ERA, Sotheby’s, and Century-21), HomeServices of America, Inc. (owner of Berkshire Hathway Home Services), Re/Max and Keller Williams.
While there are additional issues raised in the lawsuits and DOJ complaint, central to them are buyer’s agents’ commissions. Issues raised include:
- From the DOJ complaint:
- 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 and to exclude homes with lower commissions from consideration by potential home buyers;
- From the lawsuits:
- Sellers of residential property have been forced to pay inflated costs to sell their homes through forced payments of commissions to buyer brokers;
- Home sellers have been forced to set buyer broker commissions to induce buyer brokers to show the sellers’ homes to prospective buyers;
- Price competition has been restrained among brokers seeking to be retained by home buyers, and by brokers seeking to represent home sellers; and
- Defendant Franchisors and their franchisees have inflated their profits by a significant margin by the increased total commissions and increased buyer broker commissions.
[xyz-ips snippet=”Homes-For-Sale”]
[xyz-ips snippet=”Seller-Resources—Listing-Targeted”]
Continue reading “Coming Soon To A REALTOR® Near You – Commission Transparency“
The Department of Justice (DOJ) announced today that they had reached an agreement with Eagle Bank and Trust Company to resolve allegations that “Eagle Bank and Trust Company (Eagle Bank) engaged in a pattern or practice of “redlining” predominantly African-American neighborhoods in and around St. Louis.” “Redlining” is defined by the DOJ as “the discriminatory practice by banks or other financial institutions to deny or avoid providing credit services to a consumer because of the racial demographics of the neighborhood in which the consumer lives.”
In order to resolve the allegations, Eagle Bank has agreed to:
See The Lawsuit Filed By The Department of Justice vs Eagle Bank
Search ALL St Louis Homes For Sale
See ALL Homes That Will Be Open In St Louis This Weekend
Continue reading “Eagle Bank Reaches Agreement With DOJ To Settle Discrimination Claim“
Today, the owners and operators of the Alger Meadows Apartments in Grand Rapids, Michigan, agreed to pay $550,000 in damages as well as terminate their property manager to settle a sexual harassment lawsuit that was filed against them by the U.S. Department of Justice.
With the increasing popularity of rental property as an investment, there are many new investors and landlords getting into the business and they need to realize the importance of being familiar with the laws and regulations that may affect them and their business in order to avoid problems. Even though, according to the press release issued by the DOJ, the property manager is the one that was alleged to have committed the sexual harassment, the DOJ also included the owners of the complex and alleged they were liable for the property managers actions. So, just because you, as a landlord, may use a property manager, that does not necessarily mean that you are in the clear or not liable for what goes on in your behalf. Therefore, the better informed you are as an investor and landlord, they better off you will be!
I have bought and sold 2,000 homes and have owned and managed apartments and rental homes and enjoy using this experience to help new, as well as seasoned, investors not only find good deals to invest in, but get educated on the things they need to know about such as Federal Fair Housing Laws. If I can help you, please contact me.
The Justice Department announced today that the city of St. Peters, Mo. will pay $80,000 and make changes to its zoning laws to settle a lawsuit alleging that the city violated the federal Fair Housing Act (FHA) and Title II of the Americans with Disabilities Act (ADA) when it denied a zoning request to operate a group home for four women with intellectual disabilities. The lawsuit is part of the Justice Department’s continuing effort to enforce civil rights laws that require states and municipalities to end discrimination against, and unnecessary segregation of, persons with disabilities. The settlement was filed today and must be approved by the U.S. District Court for the Eastern District of Missouri. Continue reading “City of St Peters Settles with DOJ On Disability Discrimination Allegations“
The collapse of the real estate market, along with a down economy has created a fertile environment for fraudsters to attempt to advantage of the many desperate homeowners that are out there. Their methods vary from foreclosure “rescue” schemes, mortgage assistance scams and other scams that generally offer to lower your payments or debt, prevent foreclosure, etc. Below is a list of tips the Department of Justice published this week to help consumers prevent themselves from becoming a victim of fraudsters. Continue reading “How to protect yourself from mortgage fraud“
The Justice Department, the Department of Housing and Urban Development (HUD) and 49 state attorneys general announced today the filing of their landmark $25 billion agreement with the nation’s five largest mortgage servicers to address mortgage loan servicing and foreclosure abuses. Continue reading “Bank of America, J.P. MOrgan Chase, Wells Fargo, Citigroup and Ally Financial reach $25 Billion Agreement with Fed & State Government over Foreclosure Abuses“
WASHINGTON – The Justice Department today announced that Roger Harris, Hediger Enterprises Inc., Carroll Management Group, Forum Manor Associates L.P. and Forum Manor LLC have agreed to pay $295,000 in monetary damages and civil penalties to resolve a Fair Housing Act lawsuit alleging sexual harassment, race and sex discrimination, retaliation and intimidation at Forum Manor Apartments, a federally-subsidized apartment complex in Rolla, Missouri. Continue reading “Justice Department Settles Housing Discrimination Lawsuit in Rolla, Missouri“
The FBI released it’s Mortgage Fraud Report for 2010 showing that mortgage fraud continued at elevated levels in 2010 and was consistent with levels seen in 2009. The top states for mortgage fraud activity in 2010 were Florida, California, Arizona, Nevada, Illinois, Michigan, New York, Georgia, New Jersey, and Maryland. Continue reading “FBI Report Shows Mortgage Fraud Continues at Elevated Levels“
Lee Bentley Farkas, the former chairman of a private mortgage lending company, Taylor, Bean & Whitaker (TBW), was convicted today for his role in a more than $2.9 billion fraud scheme that contributed to the failures of Colonial Bank, one of the 25 largest banks in the United States in 2009, and TBW, one of the largest privately held mortgage lending companies in the United States in 2009. Continue reading “Former Chairman of Taylor, Bean & Whitaker Convicted for $2.9 Billion Fraud Scheme That Contributed to the Failure of Colonial Bank“
Today Richard W. Northcutt, a California real estate investor, pleaded guilty to conspiring with a group of real estate speculators who agreed not to bid against each other at certain public real estate foreclosure auctions in San Joaquin County. According to the court documents the primary purpose of the conspiracy was to suppress and restrain competition and to obtain selected real estate offered at these foreclosure auctions at non-competitive prices. Continue reading “Real Estate Investor Pleads Guilty to Bid-Rigging at Foreclosure Auctions“
The Justice Department today announced a $1.25 million agreement with Warren Properties Inc., Warren Village (Mobile) Limited Partnership and Frank R. Warren to settle allegations that the defendants violated the Fair Housing Act by refusing to grant a tenant’s requests for a reasonable accommodation. This settlement is the largest ever obtained by the department in an individual housing discrimination case. Continue reading “Justice Department Settles Disability Discrimination Case Against Property Management Company for $1.25 Million“
A former residential sales manager at a Florida property management company pleaded guilty to wire fraud in connection with housing repair contracts for the U.S. Department of Veterans Affairs (VA), the Department of Justice announced this week.
Benjamin K. Graves, formerly a residential sales manager at West Palm Beach, Fla.-based Ocwen Loan Servicing LLC, pleaded guilty today in U.S. District Court in Orlando, Fla., to wire fraud. According to the one-count felony charge filed on Nov. 12, 2010, in the Middle District of Florida, Ocwen managed foreclosed properties under contract with the VA, which guaranteed qualifying residential mortgages for veterans. Under the contract between the VA and Ocwen, if a veteran defaulted, Ocwen completed necessary repairs and re-sold the property. Continue reading “Former Employee of Florida Property Management Company Pleads Guilty to Wire Fraud“
Settlement Provides $2 Million to African-American Borrowers Who Paid Higher Interest Rates
PrimeLending, a national mortgage lender with 168 offices in 32 states at the end of 2009, has agreed to pay $2 million to resolve allegations that it engaged in a pattern or practice of discrimination against African-American borrowers between 2006 and 2009. Continue reading “Justice Department Reaches Settlement with Prime Lending to Resolve Allegations of Lending Discrimination“
The Justice Department announced this week that a Munster, Ind., condominium association and its three member board of directors have agreed to pay $120,000 to resolve allegations that they refused to approve the sale of a condominium to an African-American couple because of their race and because they had children. The settlement must still be approved by U.S. Senior District Judge Philip P. Simon. Continue reading “Justice Department Obtains $120,000 Settlement in Housing Discrimination Lawsuit Against Indiana Condominium Association“
A Raleigh, N.C., real estate speculator pleaded guilty to conspiring to rig bids for public real estate foreclosure auctions held in multiple counties in eastern North Carolina, the Department of Justice announced today.
Christopher J. Deans pleaded guilty yesterday in U.S. District Court in Greenville, N.C., for participating in a conspiracy to rig bids during the real estate foreclosure auction process in eastern North Carolina from at least as early as April 2003 until at least April 2005. The primary purpose of the conspiracy was to suppress and eliminate competitive bidding on foreclosed properties and obtain selected real estate offered at public foreclosure auctions at non-competitive prices.
Continue reading “North Carolina Real Estate Speculator Pleads Guilty to Bid Rigging in Real Estate Foreclosure Auctions“
The Justice Department announced it has filed a lawsuit today in federal court for the Eastern District of Missouri alleging a pattern or practice of violations of the Fair Housing Act by the owner and managers of Forum Manor Apartments, a federally-subsidized apartment complex, for refusing to rent to African-Americans and males, refusing to allow tenants to have African-American visitors, sexually harassing female tenants and retaliating against tenants who complained about such discrimination. Continue reading “Justice Department Files Fair Housing Lawsuit in Missouri Against Owner and Managers of Federally-Subsidized Property for Race and Sex Discrimination“
