Northwest MLS logo and the scales of justice
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Northwest MLS criticizes DOJ commissions stance 

The 35,000 member multiple listing service calls the DOJ’s statement of interest an “ill-informed” interpretation of its compensation practices.

March 27, 2024
2 minutes

The largest multiple listing service in the Northwest wants an opportunity to respond to what it said are the DOJ's mischaracterizations of how it handles broker compensation.

The Northwest Multiple Listing Service (NWMLS) filed a motion March 27 asking the judge in the Nosalek case to allow the organization to file an amicus curiae brief in response to the statement of interest filed by the U.S. Department of Justice in February

Because the Nosalek case has been officially paused while it awaits a ruling about consolidation, U.S. District Judge Patti Saris would need to briefly reopen the case and allow for the filing.

What NWMLS is saying: The MLS provided a draft of the amicus brief for the court, which begins by saying the DOJ's "ill-informed, ill-supported critique" of its rules "obscures, or misses altogether, the purpose and impact of NWMLS's changes."

In its statement of interest, the DOJ argued that the changes made by NWMLS, which are mirrored in the proposed settlement with MLS PIN in the Nosalek case, didn't go far enough in decreasing buyer-broker commissions or limiting steering.

NWMLS contends in its draft brief that rule changes made in 2019 eliminating the mandatory compensation rule increased transparency and removed the potential for steering.

"The change enabled greater flexibility and choice for sellers when listing a property and gave buyers and buyers' brokers a vehicle for negotiating for compensation when making an offer to purchase," the document stated.

As for steering — the scenario where an agent discourages clients from considering homes that offer lower compensation — NWMLS said the DOJ ignores the fact that its rule changes made information about sellers' offers readily available to consumers.

Why NWMLS thinks the DOJ is going too far: NWMLS noted that during a proposed settlement in Nov. 2020 with the National Association of Realtors, the DOJ pushed for the kind of changes the Washington MLS has made.

"DOJ's apparent change of heart in its [Statement of Interest] in this case is striking," NWMLS said in the draft document.

NWMLS also contends that the DOJ's preferred system of compensation — which appears to be one that would prohibit sellers from making offers of compensation offers to buyer brokers — would remove transparency and "invites brokers to make deals in secret, creating opportunities for deceptive practices, discrimination and unfair housing."

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