A new Nosalek deal: No more offers of compensation on MLS PIN
The DOJ pulled back its objections as the long-running commissions case moves closer to settlement approval.
After making a key change to the terms of its settlement with Massachusetts home sellers, the one remaining defendant in a five-year-old commissions lawsuit may finally be able to wrap up a case that has received intensive scrutiny from the Department of Justice.
The plaintiffs in the case known as Nosalek filed their fourth amended settlement agreement with MLS PIN on May 29. A preliminary approval hearing is scheduled for June 10.
How we got here: Although MLS PIN originally reached a deal with the plaintiffs in 2023, the case hit a number of roadblocks after the DOJ expressed "significant concerns" with the settlement.
After many delays and court filings, including a supplemental statement of interest from the DOJ in March, the MLS agreed to pay $3.95 million instead of the initial $3 million it negotiated, but it still wanted to display offers of compensation. Because MLS PIN is broker-owned, it is not bound by the terms of NAR's settlement, but that inconsistency concerned U.S. District Court Judge Patti Saris — and the DOJ.
"The biggest red flag to me is why did NAR agree to it and you are not," Saris said to MLS PIN attorneys during an April 1 hearing, adding, "I don't know why you care so much." While the judge told DOJ lawyers they hadn't offered any proof that displaying offers of compensation was anticompetitive, she allowed additional time for the parties to rework the agreement based on her feedback.
The fourth time's the charm: In the fourth amended agreement, MLS PIN appeared to give up the fight, agreeing to remove offers of compensation option from its platform.
Attorneys for the MLS previously argued that removing the information was the real antitrust problem because it prohibited sellers from presenting "the terms they want to offer" on a private company's platform.
In making this key change, however, the plaintiffs said the agreement now better aligns with the Sitzer/Burnett settlement.
The latest agreement also limits eligible members of the settlement class to sellers of residential real estate, removing sellers of commercial properties and mobile homes. The monetary award remains at $3.95 million, with the plaintiffs noting that MLS PIN would have paid the same amount if it had opted into the NAR settlement agreement.
The DOJ appears to be on board: The plaintiffs said they had shared the proposed settlement changes with the DOJ, noting in the filing that "After considering the proposed amendments, the [DOJ] indicated that it would no longer object to the proposed settlement on the basis of Rule 23," which relates to class actions.
But that doesn't necessarily mean the agency is done with the case: "The parties understand that the [DOJ] intends to file a brief statement with the Court withdrawing its previous objection while otherwise retaining all rights to bring a separate enforcement action," the May 29 filing stated.
The plaintiffs in the case previously reached settlement agreements with the brokerage defendants — RE/MAX, Anywhere, HomeServices of America and Keller Williams.