Aricle Courtesy of: RIS Media
By: Jordan Grice
July 3, 2024

Industry leaders and stakeholders are trying to keep their relationship with the DOJ amicable as the August 17 deadline approaches.

The complicated process of ensuring that the real estate industry complies with incoming policy changes is underway, as concerns about loopholes surrounding commission-sharing have already started a discourse among regulators and innovators—potentially, an amicable one.  The ongoing dialogue was highlighted by a recent meeting between the National Association of REALTORS® (NAR) and the U.S. Department of Justice (DOJ) to discuss incoming policy changes and DOJ concerns regarding implementing and adhering to settlement provisions set to take effect on August 17. 

In a memo to members obtained by RISMedia, NAR President Kevin Sears claimed that the meeting was a big step in having “a meaningful dialogue” with the DOJ. 
“While there is much more work to be done, the meeting was productive as we try to find ‘common ground’ on topics that define how we do business and support the dream of homeownership in America,” he wrote. 

Sears states that DOJ officials raised concerns regarding industry participants using potential avenues to “circumvent” the coming practice changes.   “To be clear: NAR—and I personally—oppose any attempts to circumvent the settlement,” Sears wrote. “The practice changes should be implemented fully and in good faith, in the service of promoting consumer empowerment, consumer choice and healthy competition.”

Among the changes is the elimination of buyer broker compensation offers on multiple listing services, which has spurred innovation among industry professionals trying to bridge the communication gap between the buy and sell sides of the transaction.  

While the DOJ’s scrutiny of shifting policies and industry adherence hasn’t branched into this growing sector of companies, it has already begun spurring discussions among them.

Dan Cooper is the founder and CEO of Gitcha, a consumer-facing platform allowing buyers and their agents to publicize what they want in a deal.  The crux of the site is for buyers and their agents to be able to be upfront about what they are looking for in a deal, allowing sellers to decide from the beginning who they want to work with.  That can include compensation, but Cooper points out that his platform isn’t meant to be a workaround for industry professionals.  

“This is a standalone product,” Cooper says. “It’s not to circumvent commission sharing, but to proactively communicate what you want to have that you would put in the offer.”

Cooper made similar arguments in a recent social media post expressing dismay for being categorized as a company exploiting a loophole in the settlement. 
“While real estate agents can use Gitcha as an alternative to past practices, and we will continue to innovate to help them with all the upcoming changes in the industry, it was not built to circumvent anything,” Cooper wrote. 

His post went on to state that the platform is designed to be integrated as a workflow for agents, not a workaround.   “We are also a consumer-facing site, where consumers get to see the postings by agents. We aren’t an agent-only, secret society of commission sharing, and our product wasn’t created because of the settlement or the lawsuits,” Cooper wrote.

Steven Hattan, co-founder of ListingSplit, echoed similar sentiments. His consumer-facing platform is the polar opposite of Gitcha, allowing homeowners to publicize the financial incentives they are willing to offer to attract buyers.   

“This is a seller platform, and it has nothing to do with the settlement,” Hattan says. “It has nothing to do with NAR and the structure of the platform, and it has nothing to do with listing agents.  “We are strictly a site for sellers as if you were for sale by the owner, and you wanted to advertise your house on ForSaleByOwner.com,” he adds.  “You can mention your bedrooms, you can mention bathrooms, you can even mention that you want to offer a commission to a buyer’s agent.”

What to watch for

While both Hattan and Cooper are confident that their respective platforms uphold incoming rule changes, both tell RISMedia that they are open to feedback and willing to adapt if that were to change.

Hattan says, “If the Department of Justice approached me and said, ‘Steve, listen, we’ve got some problems with what you were doing,’ my response would be, ‘Let’s go sit down and have a cup of coffee, and let’s figure out where our discrepancies are and let’s try to fix this because we both have so many things in common.’ We want transparency; we want competition…there does not have to be an us and them. We can work together and make this work beautifully.”

Sears’ memo also states that the Justice Department is monitoring buyer representation contract drafts and revisions, encouraging members to “evaluate them for clarity and emphasis on consumer choice.” 

That clarity, or lack thereof, was a central issue in recent tensions between the California Association of REALTORS® (CAR) and the Consumer Federation of America (CFA).   In a recent press release, the latter entity heavily criticized CAR’s draft of a buyer agent agreement and commissioned a report that called the form “unreadable” and “anti-consumer.” 

“The concern that DOJ has and CFA shares is that the litigation settlement provides opportunities for the industry to avoid uncoupling the rates,” says CFA Senior Fellow Steven Brobeck.   Brobeck tells RISMedia that if the rates are coupled, that could open the door for collusion among agents on both sides of the transaction to influence consumers to pay more in commissions, which has been the crux of past and present litigation facing the real estate industry and its largest brands. 

With that in mind, NextHome CEO James Dwiggins tells RISMedia that attempts to include commission sharing in listing agreements in the new age of industry rules will open the door for further litigation and damage to the industry. 

“This is not that hard to understand,” he says. “If we just move that same practice off the MLS and onto standardized forms that everyone is using—developed by a committee of competing brokerages—the lawyers will come back for round two.  “They’ll sue everyone again on the same basis only using standardized forms this time—whether justified or not, and we’ll end up right back in court,” Dwiggins continues.  “We’ll all end up settling again or spending a fortune defending the claims, hurting our reputation further, and paying the lawyers hundreds of millions more.”

Given the current “consumer-centric model” in the industry today, Dwiggins notes that sellers no longer need to advertise buyer incentives.
Instead, he says listing agents need to state that their clients are “willing to entertain any requests for offers of compensation or concessions” in the purchase agreement. 

He also encourages buyer agents to put their requests in the purchase agreement.  “It can be that the seller pays your compensation so it can be financed and doesn’t affect IPC, or you can request a concession toward buyers’ closing costs—or both,” Dwiggins says. “The buyer then uses those concessions to pay closing costs—whatever they might be. It’s a negotiation, which is literally what we do every day.

“All the rest of this workaround stuff everyone keeps trying to figure out is going to end up in more lawsuits,” he continues. “The DOJ does not want this, and while I disagree with almost everything the DOJ is doing, again, we need to be skating to where the puck is going, and not where it is.”

Article courtesy of: Inman News
By: Jim Dalrymple II


NAR's landmark settlement bars sellers' agents from offering commissions to buyers' agents in the MLS. A batch of new companies are stepping in to fill the void

When the National Association of Realtors announced its landmark commission settlement earlier this year, it raised one huge question: How will buyers’ agents get paid?

The question arose because, among other things, the settlement stipulates that sellers’ agents will no longer be able to offer commissions to buyers’ agents within NAR-affiliated multiple listing services — which is how much of the industry had been operating. Now, more than three months later, the answer to that question remains unclear. Some have speculated that without offers of compensation in MLSs, concessions might be the answer. Others have floated the possibility of cultural changes, such as the expansion of dual agency.

But during a recent virtual open house, Keller Williams Head of Industry and Learning Jason Abrams argued that really, the sky’s the limit for commissions.

“Sellers can still decide to specifically offer cooperative compensation, and it can be marketed any place other than the MLS,” Abrams said. “This could include things like newsletters and text messages and carrier pigeons. Or a broker or agent’s own website.”

Carrier pigeons might be a stretch. But in recent months a host of industry professionals have apparently come to the same conclusion — and stepped in to fill a void.

Specifically, a collection of companies have emerged to offer what the MLS no longer can: Online locations for agents and consumers to share their offers of compensation.

The sites represent a particular philosophical understanding of real estate’s future. They’re an argument, essentially, that buyers’ brokers will still be paid by sellers and that compensation offers will still appear online. 

Neither of those assumptions are foregone conclusions, but the people behind these offerings are forging ahead with the hope that consumers and industry members will see something they like — and that government regulators won’t get in the way.  In other words, buyer beware.

Verified Commissions

Verified Commissions launched last month. The company described itself in a statement as “an open-source platform for agents to share offers of compensation,” with the goal to become the “largest database for verified offers of compensation to buyers’ agents.” The site is free and allows users to search listings by address to see if those listings have compensation offers attached.

In a conversation with Inman, William Schoeffler — who is part of Verified Commissions’ design team — said the company is building a database by sending out about 10,000 emails daily to listing agents asking them to register with the site.

“Basically we want to grow awareness and build out the number of listing agents that are using our platform, so that over time we can become the go-to platform,” he added.

CEO Cody Tuma told Inman that demand for the offering has been strong so far, and noted that as the August deadline for implementing the NAR settlement rules nears more agents are likely to be looking for a solution like Verified Commissions.

“All these agents, their phones are just gonna start lighting up and they’re just gonna be like, ‘Oh my gosh, there has got to be a better solution for this,'” Tuma said. “And there already is.”

 Listing Split

Listing Split is the product of Steven Hattan, a long-time real estate broker, and Ed Ellingham, a software developer. The site went live last week. Unlike Verified Commissions — which markets itself as a tool for agents to use in the wake of the NAR settlement — Listing Split is geared toward consumers themselves.

“Sellers are at a disadvantage if they can’t offer a finders fee,” Hattan told Inman, adding that “our focus is completely on the homeowner; it’s completely on the seller.”

The site includes pages where sellers can offer commissions, as well as where buyers can search listings by address for “incentives” homeowners are providing. It also includes a page that aims to help Realtors introduce the site to their clients, though Hattan noted that Listing Split is “not for agents to use” directly.

The company charges users a one-time fee of $19.

 Nesthook

Nesthook was the first company to garner significant attention as a kind of commission-sharing workaround and advertises itself on its website as a “compliant commission disclosure for real estate pros.” The orientation to industry members, rather than consumers, puts it in a category closer to Verified Commissions than Listing Split — though like both rivals it, too, includes an address-based search bar.

Speaking to Inman earlier this month, President Ryan Kelley characterized Nesthook as a direct response to the NAR settlement, adding that he believes the company complies with the new rules.

“I understand that changes could still happen [and] it’s all very unclear, and none of us really know, but we’re confident with what we built, [and that it] is something we’re going to move forward with now,” Kelley said.

Nesthook offers two pricing plans: Either $3.99 per month, or $39.99 for an entire year.

Gitcha

Gitcha markets itself as the “first ‘in search of’ marketplace,” meaning it’s a space for buyers and their agents to publicize what exactly they’re looking for in a deal.  Founder Dan Cooper recently told Inman that the project was in the works for years, though the site does now reference the NAR settlement — the timing of which Cooper said was serendipitous. The general idea is that would-be buyers share what they need, including, but not exclusively, broker compensation. Homeowners can then more easily find the right people to buy their homes.

For consumers, Gitcha offers a free “lite” version, as well as a paid tier costing $13 per month. Consumers who sign up are given the chance to either create a “want ad” detailing what they’re looking for in a property, or to add a home they already own to their “inventory,” which can let them gauge demand.

Real estate professionals can sign up for Gitcha as either brokers, property managers or both. Industry members also have access to a free version of the site, as well as a paid version that costs $12 per month.

Unlike other offerings on this list, Gitcha is unique for including rentals on its site.

Payload

Payload is the odd company out on this list because it isn’t a website for posting commission sharing offers. Instead, the company — a secure transaction payment provider that has been around for years — is now offering invoicing tools for agents to collect fees directly from consumers.

The tools are among numerous offerings the company provides, but represent a kind of theoretical alternative to the sites above; instead of envisioning a world in which commission offers still appear online, Payload imagines one in which agents bill their clients directly. It’s still a kind of workaround, but one of a different flavor.

In a recent statement, the company nodded to the NAR settlement as the impetus behind the new tools.

“The industry is poised for a shift towards increased transparency and direct financial dealings, highlighted by the anticipated use of buyer agency agreements,” the company said in its release. “This shift is likely to see a reduction in standard commission rates, with agents and brokers exploring alternative fee structures, such as buyer retainer fees, hourly fees, showing fees and other service fees.”

 Will any of these solutions actually work?

The big question looming over all of these workarounds is if they’ll survive the tumultuous and highly uncertain legal obstacle course that lies ahead. Attorneys Inman contacted for this story were reluctant to speak on the record, citing the ongoing nature of various lawsuits, though several did agree to talk on background. The gist from those conversations is that third-party sites with no relationship to MLSs do not appear to violate the terms of NAR’s settlement.

However, there are caveats.
For instance, in addition to barring commission offers in the MLS, the settlement also disallows such offers on sites supported by MLS data, either “directly or indirectly.” What this means in practice is that a portal that licenses MLS data, for example, could not step in and create a space for agents to make shared commission offers.

The above sites currently offering workarounds aren’t doing that. On the other hand, there is some ambiguity in language such as “indirectly,” meaning it’s conceivable that commission-sharing sites could eventually cross a line that has not yet become clear.

A bigger caveat, though, is what the Department of Justice might think of such workarounds. The department has indicated that it does not want sellers making preemptive offers of compensation to buyers’ agents. Instead, the DOJ wants buyers’ agents to negotiate directly with their clients for compensation.

The DOJ hasn’t yet weighed in on third-party commission-sharing sites, probably because such sites are still relatively new, but one attorney said the concept generally does seem to be at odds with the department’s overarching objectives and could eventually lead to some sort of litigation.

Or not. One of the primary reasons lawyers contacted for this story were reluctant to publicly speak out is because the future of commission workaround solutions is highly speculative and involves numerous unknown variables. Meanwhile, predictions abound that the DOJ will become more assertive, and back in February NAR President Kevin Sears suggested the agency could be a “bigger problem” for brokers and agents than the settlement itself.

Against that backdrop, debate about the issue has raged in online forums and message boards. Inman reached out to a handful of agents who have weighed in, though none of those who were strongly in favor of various commission workarounds called back. On the other end of the spectrum, though, Indiana team leader Patrick Harris, of the Harton Group, did tell Inman that commission-sharing websites are “an attempt to hold on to a past that no longer exists, and [according to] the settlement and by the DOJ, it can’t exist anymore.”

“People need to stop trying to find loopholes and just move forward,” he argued.

Harris’ sentiment is far from universal but does capture a viewpoint that many share — and which could complicate the rollout of any particular commission-sharing workaround.

The analog solution

Tech may ultimately be the answer to questions about how agents will get paid — or, communicate about pay — in the future. But in a case study of how other solutions still abound, Tracey Hicks has pivoted in an entirely different direction: analog.

Hicks is the owner of All Things Real Estate, a store that offers supplies to agents. She recently told Inman that soon after the NAR settlement, a member of the real estate community reached out to ask if Hicks had any resources. So she made some.

The result is a sign now available through Hicks’ store that reads “courtesy to buyer brokers!” It can be affixed to an agent’s normal yard sign, and Hicks said the idea is to use language agents are familiar with and to let them know there is a commission on offer.

Whether the sign catches on remains to be seen, and asked about commission solutions, Hicks herself said that “there’s going to be quite a few different ways of handling it.” But she also said that eventually the questions will be answered. People will keep buying and selling houses. The real estate industry will move forward.

“Like most things,” Hicks concluded, “the dust will settle.”

Article Courtesy of: Inman News
By: Jonathan Pressman

Want some fast, simple ideas for powering your marketing through a summer slowdown and pumping up the volume on your pipeline? Agent Johnathon Pressman has you covered

If you’re like most real estate agents, you’re a regular social media user. You post a couple of photos when you have a new listing, then again when you sell a property. There’s nothing wrong with that, but if you want to make the most of your social media pages, you need to engage your audience and post regularly consistently.

Here are nine ideas you can use to create endless content that can help you connect with your audience, build your brand and grow your business.

1. Reintroduce yourself

Believe it or not, there are people in your natural market who don’t know what you do, no matter how many times you announce it to the world.

Some people might forget, and others might just misunderstand what you do or where you do it. Take the opportunity to introduce yourself and share what you do as an agent, including the types of properties you specialize in and the geographic areas you serve. 

2. Give a home tour

You’re used to giving in-person home tours to clients, so why not bring the tour to them on their social media pages? Let your audience see a home from your perspective. Point out things you notice, and give your viewers an idea of what they should look out for when they’re touring a house.

If you’re hosting an open house, take advantage of the downtime to go live and show people around in real-time. 

3. Talk about home styles and systems

Don’t wait until you have a listing to talk about the features and systems of a house. If you’re walking down the street and see a beautiful home or an unusual architectural design, show it to your followers.

If you’re traveling, point out some differences between the styles of houses in your local market and the houses elsewhere. The more time you spend in real estate, the more you learn — and your followers value (and are interested in) that knowledge.

So get in front of the camera and explain the differences between radiant heat systems and forced air, show them what an oil tank looks like, or give a quick tip on how to spot knob-and-tube wiring. 

4. Highlight a local business

Engaging with the local community is always a great idea, so the next time you’re out shopping, highlight a local business on your social media pages. Introducing your followers to your favorite restaurant or retailer is a win-win that can help you engage with your audience and promote local businesses.

5. Repost or repurpose old content

Sometimes, you’re just fresh out of ideas. This is the perfect time to repost or repurpose old content. If you’ve been posting regularly and gained new followers, they might not have seen some of your older content. Take the opportunity to repost something you shared several months ago, or if you prefer, you can simply repurpose old content with a new spin. In the worst case, you can even repost someone else’s content.

6. Share your thoughts on the state of the market

Everyone wants to know what’s happening in the market, and who better to tell them than you? You can share data from a market report or just tell your audience what you think about the market and trends you’ve noticed.

Pro tip: Check your local MLS for free housing market statistics and graphs.

7. Share ideas for home decor

Homeowners are often looking for decor ideas, and while you’re (probably) not an interior designer, you can still share ideas for inspiration.

If you follow an architect or interior designer on social media, repost some of their content and tell your audience why you love it.

If you’re at a friend’s house and love the way they’ve furnished their guest bedroom, share it with your followers. 

8. Offer homeowner tips

Everyone wants to save money, and your listing prospects will appreciate you sharing valuable tips on how they can cut back on the costs of homeownership.

You can remind homeowners of the homestead exemption a few weeks before the filing deadline (this varies by location and is often between February and May), share tips for reducing electricity costs in the summer and winter months, or talk about which upgrades tend to have the highest ROI. 

9. Team up with another real estate professional

As you know, buying, selling and maintaining a home can take a small army. In addition to real estate agents, there are mortgage lenders, title agents, attorneys, inspectors, appraisers, surveyors, photographers, stagers and more.

Your social media content doesn’t always have to be a solo performance. Try teaming up with another professional to offer your audience the valuable perspective of someone they might work with on their next transaction. Not only is this a great way to vary your content, but it’ll also help you build relationships and extend your reach to your guest’s audience.
One of the founding partners of the real estate team I work with has a saying: “Your clients have to buy into you before they buy a home.” Don’t forget to be your most authentic self.

Most of us rely on our natural market to generate business, yet we often run our social media pages like we’re targeting strangers. Sometimes, the posts with the highest engagement have nothing to do with real estate but everything to do with you as an individual. So, live your life and give your audience a glimpse of who you are, not just what you do for work. 

Jonathan Pressman is a Realtor who writes on a wide range of financial topics.

Once again, a new sales tax on homes and commercial property is being debated on Beacon Hill.  This time, the State Senate is considering real estate transfer taxes as part of its version of the housing bond bill, and we need your help in sending a message to senators urging them to oppose a provision allowing cities and towns to create a transfer tax.  If you haven’t acted yet, please take the time now to join in the Legislative Call-For-Action issued last week by the Greater Boston Real Estate Board.  
 
As we’ve noted, transfer taxes are not a solution to the housing crisis. Instead, they would add to the already high cost of housing home buyers face in Greater Boston, strip equity from home sellers, and worsen our already severe housing shortage by discouraging older homeowners from selling and acting as a disincentive to investments in new housing production.  
 
Significantly, GBREB, the Massachusetts Association of REALTORS®, and other industry groups have worked together to successfully keep transfer tax language out of the housing bond bill reported out by the Massachusetts House of Representatives.  Now, we need to convince the Massachusetts Senate to do the same.   
 
To learn more about the negative impact transfer taxes would have on the local housing market and economy, visit our StopNewTaxesMA campaign website.  To join the effort in urging the Senate to reject transfer taxes in the housing bond bill, simply respond to the Call-For-Action today as the Senate debates the legislation.  In doing so, a pre-drafted letter outlining industry position to transfer taxes will be sent to your state senator.   
   

Have you heard the news? 
  
The National Association of REALTORS® annual convention is coming to Boston this fall! 
  
If you’ve never attended an NAR conference, we invite you to attend our informational webinar on Friday, June 21, from 10-11 a.m. During the session, we will provide an inside look at the program for the 2024 NAR NXT Conference & Expo taking place from November 8-10 at the Boston Convention & Exposition Center and Seaport District hotels.
  
On this webinar, two national REALTOR® leaders – NAR New England Region VP Steve Medeiros and NAR Member Services Liaison Gary Rogers – will share their insights and tips for navigating the conference schedule and maximizing your time to get the most out of the NAR NXT experience.

As one of the real estate industry’s premiere annual events, NAR NXT offers numerous opportunities to learn, network, and expand your business at daily education sessions, member forums, governance meetings, and special tours and field experiences. It also features one of the largest industry trade shows and this year includes several special events, including a General Session with Baseball Hall of Famer David Ortiz. 
  
At our NAR NXT Info Session on June 21 you’ll get an inside look as to the can’t miss sessions for first-time attendees, the best activities to participate in to build your referral network, and special opportunities to save on the conference registration and take home prizes. There’ll also be a Q&A segment, so prepare your questions and sign-up today to join us as we get you ready for the 2024 NAR NXT Conference & Expo in Boston.

Watch the full webinar replay here!

Article Courtesy of: Inman News
By: Andrea Brambila

MLS PIN on Monday urged a district court to reject the Department of Justice's arguments against a settlement with homeseller plaintiffs in the Nosalek antitrust commission case

A large broker-owned multiple listing service is pushing back against the Department of Justice’s take on a proposed settlement seeking to resolve antitrust claims lodged by homesellers in a major commission case known as Nosalek.

On Monday, MLS Property Information Network (MLS PIN) urged Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts to reject the DOJ’s arguments against the settlement and approve the deal, saying that the federal agency’s proposed “total ban” on commission offers from sellers to buyer brokers — both on and off the MLS — itself violates antitrust law and the First Amendment’s free speech provision.

“DOJ’s policy position not only goes far beyond what antitrust law requires; it also creates an antitrust problem for MLS PIN where none existed,” attorneys for MLS PIN wrote in the June 10 response to the DOJ’s statement of interest.

“MLS PIN cannot enter into an agreement to ban the publication of free-market compensation offers without offending the very antitrust principles DOJ claims to be protecting. To impose such a ban through a federal injunction would also suppress speech that is protected under the First Amendment.”

MLS PIN points out that the DOJ is not saying that sellers should not pay buyer brokers, since the antitrust enforcer has explicitly said that buyers can ask sellers to pay buyer brokers in their purchase offers, but rather that pre-emptive offers to pay should be restricted.
“DOJ never denies that sellers have the right to compensate buyer brokers; it only advocates arbitrary restraints on the communication of compensation offers,” the filing says.

“But the payment of buyer-broker commissions has long been legal under Massachusetts and federal law. This proposal to ban truthful and non-misleading speech made in furtherance of a lawful activity runs headlong into a string of Supreme Court cases recognizing that such bans cannot survive First Amendment scrutiny.”

For MLS PIN to ban homesellers from offering compensation to buyer brokers would be “a blatant restraint on trade much more severe than other MLS rules that have been struck down as anticompetitive,” the filing adds.

MLS PIN also argues that the DOJ has other avenues to change how commissions are paid should it choose to.

“Crucially, nothing in the proposed settlement between Plaintiffs and MLS PIN would limit DOJ’s ability to pursue changes to real estate market practices, in Massachusetts or anywhere else, through legislative advocacy or administrative rulemaking,” the filing says.

“Indeed, the entirety of DOJ’s Statement sounds in the realm of policy and should be addressed to those bodies responsible for crafting statutes and regulations: namely, Congress or the Federal Trade Commission.”

MLS PIN pointed out that the Biden Administration has already directed the FTC, which shares responsibility over antitrust with the DOJ, to exercise its rule-making authority “in areas such as … unfair occupational licensing restrictions; unfair tying practices or exclusionary practices in the brokerage or listing of real estate; and any other unfair industry-specific practices that substantially inhibit competition.”

According to MLS PIN, the FTC “is the appropriate forum for resolving the policy concerns.”

Like federal commission suits Moehrl and Sitzer | Burnett, Nosalek seeks class-action status and alleges that the sharing of commissions between listing and buyer brokers inflates seller costs and is a conspiracy in restraint of trade, a violation of the Sherman Antitrust Act.

However, Nosalek differs in one important respect from the other suits: The National Association of Realtors is not named as a defendant, while MLS PIN is. The MLS, which has a full-time staff of 60 employees, boasts approximately 46,000 subscribers in six New England states and New York.

The settlement class is made up of sellers who paid, or on whose behalf sellers’ brokers paid, buyer broker commissions starting Dec. 17, 2016, in connection with the sale of residential real estate listed on Pinergy, MLS PIN’s multiple listing service system.

If Judge Saris chooses to deny final approval to the settlement with MLS PIN, the case against the MLS will continue unless and until another settlement deal is reached and finalized.

Under the current proposed settlement, MLS PIN would remove a requirement that homesellers must offer compensation to buyer brokers; would require listing brokers to notify sellers that they’re not required to offer compensation to buyer brokers and that they can decline if a buyer broker requests compensation; and would clarify that if the seller makes an offer to a buyer broker and the buyer makes a counteroffer, commissions would be negotiated among the seller, the buyer, the seller broker and the buyer broker.

“MLS PIN maintains that these three additional changes — (1) no required offer of compensation, (2) mandatory disclosure, and (3) mandatory certification — are unnecessary,” the filing says.

“But they undeniably address MLS PIN’s alleged role in the conspiracy as a mere conduit between buyers and sellers. These changes fully resolve the disputed antitrust conspiracy claim presented in this litigation.”

However, in its statement of interest, the DOJ rejected the rule changes in the settlement and instead called for “an injunction that would prohibit sellers from making commission offers to buyer brokers at all,” which the agency said would promote competition and innovation between buyer-brokers because buyers would be empowered to negotiate directly with their own brokers.

But MLS PIN emphasizes that the DOJ’s own policy statements have previously said that sellers may offer compensation to buyer brokers “up-front” on MLSs and that doing so can reduce transaction costs because listing brokers don’t have to negotiate separately with each potential buyer broker.

“It is simply not the case that antitrust law requires an MLS to affirmatively prohibit sellers from offering compensation to buyer brokers,” the filing says [emphasis in original].

“Yet DOJ’s core position here is that any proposed settlement must do exactly that to be fair and reasonable. DOJ ignores that scores of federal cases have already confirmed the legitimacy of the practice it now seeks to prohibit.

“So too have state laws, federal statutes and regulations, and the DOJ’s own prior policy positions. DOJ provides no on-point authorities to the contrary.”

Moreover, MLS PIN contends that “an evaluation of the proposed class settlement does not require a mini-trial on fiercely disputed antitrust issues,” but rather whether the deal is “fair and reasonable to the class members.”

“DOJ focuses entirely on the question of whether the proposed settlement would allow the alleged anticompetitive conduct to continue,” the filing says. “But this is exactly the kind of question the Court need not entertain in evaluating a proposed antitrust settlement.”

The DOJ declined to comment for this story. A joint statement from the DOJ, the plaintiffs and MLS PIN regarding the settlement is due to the court on June 21.