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The DOJ intervenes in Nosalek buyer-broker commission lawsuit

The Department wants to further examine MLS PIN’s settlement agreement

MLS Property Information Network’s (MLS PIN) settlement agreement in the Nosalek class action antitrust buyer-broker compensation lawsuit has hit yet another snag.

On Thursday, the Department of Justice indicated that it had “significant concerns” about the proposed antitrust settlement between home sellers and MLS PIN, filing a motion to extend the deadline for the final approval of the settlement.

“The United States makes this request to better enable the Department of Justice to evaluate the Proposed Settlement and its competitive effects,” the motion reads. “Pursuant to its mission, the Antitrust Division is concerned about policies, practices, and rules in the residential real-estate industry that may increase broker commissions.”

It continues: “Buyer-broker commission rules are the subject of several pending antitrust suits and a pending appeal in which the United States is an appellant.”

The DOJ is requesting that the court push the final approval hearing deadline from Jan. 4, 2024 to March 7, 2024.

The settlement agreement initially came up against resistance from Judge Patti Saris of the U.S. District Court in Boston who is overseeing the case. Saris initially expressed skepticism over the financial portion of the proposed agreement, before ultimately approving it in mid-September.

In the proposed agreement, MLS PIN said it would pay $3 million, change its commission policies and cooperate against the remaining defendants in the lawsuit, which include AnywhereRE/MAXKeller Williams and HomeServices of America.

According to the proposed settlement, of the $3 million MLS PIN has agreed to pay in the settlement, up to $900,000 will go toward attorney’s fees, up to $200,000 will go toward expenses, $250,000 will go toward notifying settlement class members and each of the three named lead plaintiffs will get up to $2,500 for being class representatives.

The remaining $1.6425 million would be used to pay for further expenses for the litigation against the remaining defendants “for the benefit of Settlement Class Members,” according to the filing.

The DOJ’s latest filing does not address the $3 million proposed damage award.

In response to the DOJ’s motion, the plaintiffs in the class action suit filed their own document opposed to the DOJ’s motion, stating that the DOJ did not articulate any specific weaknesses in the proposed settlement agreement.

“The Department has had full access to the full terms of the Settlement Agreement for over three months,” the plaintiff’s Sept. 29 filing reads. “Moreover, as the Department itself acknowledges in its motion, despite working on analyzing the underlying issues for years, the Department still, as discussed below, is unable to articulate to Plaintiffs any specific purported weaknesses in the proposed Settlement, beyond generalized ‘concerns.’”

Originally filed in December 2020, the Nosalek lawsuit, named after its lead plaintiff, alleges that the broker-owned MLS PIN is not directly required to abide by the National Association of Realtors (NAR) rules.

However, it has nonetheless adopted a rule similar to a NAR rule requiring listing brokers to offer a blanket, unilateral offer of compensation to buyer brokers in order to submit a listing to MLS PIN.

Unlike the two other buyer-broker commission lawsuitsMoehrl and Sitzer/Burnett, NAR is not a defendant in the Nosalek lawsuit. Additionally, while Anywhere and RE/MAX have filed settlement agreements in the Moehrl and Sitzer/Burnett suits, they have not tried to settle the Nosalek suit.

MLS PIN, which is New England’s largest Multiple Listing Service (MLS), filed the settlement agreement in late June. 

HomeServices of America and MLS PIN declined to comment on the DOJ’s motion. RE/MAX, Anywhere and Keller Williams did not return a request for comment.

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