The Department of Justice and MLS PIN logos against a courtroom backdrop.
Illustration by Lanette Behiry/Real Estate News; Shutterstock

MLS PIN to DOJ: Stay out of our settlement 

Attorneys argue that if the federal agency wants to make policy changes, it should do so through the legislature, not an antitrust settlement.

June 10, 2024
3 minutes

Interfering with an antitrust settlement proposal is not the right way to make sweeping changes to the real estate industry, said MLS PIN, which defended its deal with the plaintiffs in the Nosalek case in Massachusetts.

In court documents filed June 10, attorneys for MLS Property Information Network noted that buyer-broker commissions have long been legal under Massachusetts and federal law, and the U.S. Department of Justice's proposed changes to real estate practices should be pursued through Congress and other administrative agencies. 

In February, the DOJ filed a statement of interest in the case, suggesting that the court consider an injunction that would prohibit sellers from making any offers of compensation to buyer brokers — something that goes far beyond the proposed settlement terms.

What MLS PIN had to say: In its response, MLS PIN said the court should reject the DOJ's policy arguments in the interest of transparency. 

The organization also argued that the proposed settlement resolves the disputed antitrust conspiracy claim and there is no requirement to ban offers of compensation altogether.

"Even if DOJ walked back its support for a total ban on free-market compensation offers and instead advanced a more measured proposal — for example, a ban on publishing compensation offers only on the MLS — it would remain true that DOJ's position goes far beyond the requirements of antitrust law and abridges MLS PIN's rights to publish compensation offers and to conduct lawful business in Massachusetts," the June 10 court document stated.

Plaintiff's attorneys in this case said a joint statement with MLS PIN and the DOJ will be filed on or before June 21 regarding the questions raised by the court. This could give Judge Patti Saris the information needed to make a final ruling on the settlement, potentially ending a case that began in 2020.

What were the original settlement terms? In its June 2023 settlement, MLS PIN agreed to pay $3 million and change its rules surrounding buyer-broker compensation.

The settlement, which was expected to be finalized this spring, was contested by the DOJ, which said the proposed compensation rule changes were insufficient. 

The rule changes agreed to by MLS PIN include eliminating a mandatory offer of compensation from the seller to the buyer-broker, requiring listing agents to notify their sellers that such compensation is not required, and making it clear that any compensation offered by the seller to the buyer-broker can be negotiated among all parties.

The original defendants in the case were MLS PIN, Anywhere, RE/MAX, Keller Williams and HomeServices of America. All of the brokerage defendants have subsequently reached settlement agreements.

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