New wrinkle in commissions settlement as Flexmls withholds data 

The plaintiffs in one of the industry's most consequential lawsuits have informed the court that a major MLS platform provider is refusing to hand over relevant data.

In a motion filed today with the U.S. District Court for the Western District of Missouri, plaintiffs in the landmark Sitzer/Burnett case claim that FBS — the company behind Flexmls, a leading MLS platform used by more than 330,000 subscribers, according to its website — has not complied with a subpoena requesting seller and listing data.

Per the terms of the opt-in settlements signed by "more than 500" MLSs, according to the filing, "those MLSs expressly consented to Plaintiffs obtaining their listing and class member data from third parties, such as MLS platform providers, to support the litigation of the Gibson case."

FBS's role in the settlements: The technology provider is one of those "third parties" in possession of listing data, and it "has acknowledged that it has in its possession historical MLS listing data — including data on commissions — for more than 100 MLSs around the country," the filing states.

The plaintiffs are trying to obtain data from FBS and similar providers because it "would be significantly more efficient than obtaining it from more than 500 separate MLSs." To certify a class and prove damages, plaintiffs need comprehensive listing and commission data for all eligible class members. 

The dispute: The plaintiffs claim they "attempted to work cooperatively with FBS for several months," providing the company with a list of opt-in MLSs and the settlement language indicating they consented to the release of the requested data.

The filing says FBS "refused to produce" the requested data, citing disclosure limitations in some of its MLS client contracts — which the plaintiffs claim are overridden by the court order. The motion further states that FBS notified clients about the subpoena and asked for their consent to share data with the plaintiffs, but did not mention their settlement obligations. 

Most of the MLSs contacted by FBS never responded, according to the filing, and among those that did, several did not consent to the release of their data — but FBS would not provide a list of those organizations.  

Real Estate News has reached out to FBS for comment. 

What the plaintiffs want: The July 22 motion asks the court to remind each opt-in MLS that it consented to the release of data from third-party providers, and to explain how the MLS can file an objection. The plaintiffs requested a seven-day deadline for such a filing, adding that if an MLS does not file an objection within seven days, it has implicitly agreed to the release of its data by third parties.  

If an MLS does object, "Plaintiffs and the MLS shall brief the merits of that objection and the Court shall subsequently resolve any dispute over the enforcement of the settlement agreement as to that MLS," the filing states.

How we got here: The Sitzer/Burnett case alleged that NAR and several large brokerage companies conspired to artificially inflate commissions to the detriment of homesellers. The case went to trial in October 2023, and a jury found in favor of the plaintiffs. NAR agreed to settle in March 2024 for $418 million in a deal that covered Realtor association-owned MLSs and provided a path for others to opt in separately. 

A final judgment was filed in early 2025, though the settlement was appealed and is under review by a three-judge panel in St. Louis. The panel is expected to decide by mid-2026 whether the Sitzer/Burnett and related Gibson settlements will stand.