Real Estate

All Eyes On The DOJ As Commission Calendar Rolls On: The Download

As key milestones approach, the DOJ’s upcoming opinion on the commission lawsuit settlement is already drawing both attention and criticism.

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Each week on The Download, Inman’s Christy Murdock takes a deeper look at the top-read stories of the week to give you what you’ll need to meet Monday head-on. This week: As key milestones approach, the DOJ’s upcoming opinion on the commission lawsuit settlement is already drawing both attention and criticism.

Just when you thought it was safe to go back in the water and that the commission lawsuit settlements were pretty much a done deal, the DOJ’s ongoing interest in the issue has sparked new concerns and additional angst for real estate professionals, proptech providers and MLSs.

In comments made by DOJ attorney Jessica Leal during a May 21 status hearing in the Nosalek commission case, Leal indicated the regulator would neither support nor oppose the NAR settlement agreement, which will lead to the implementation of sweeping rule changes this summer.

Leal added that the DOJ didn’t want to see offers of compensation being made “anywhere,” according to RISMedia. Leal said, “We believe offers of compensation should not be made anywhere, but certainly not on the MLS.”

As you continue to stay up to speed on the latest, here are a few upcoming dates to mark on your calendar:

  • June 18: Opt-in deadline for NAR settlement
  • June 20-21: DOJ expected to update its position on the NAR settlement and two other real estate issues
  • Aug. 17: MLS and buyer’s agent agreement rules to go into effect

Meanwhile, for those hoping that MLSs, tech companies, and individual brokers and agents would be able to develop workarounds, including posting commission information on websites or posting “seller contribution” info instead of commissions, there’s concern that the DOJ could view any information that’s shared anywhere verboten.

In a June 10 response to the DOJ’s statement of interest, MLS Property Information Network (MLS PIN) urged Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts to reject the DOJ’s arguments against the settlement and approve the deal, saying that the federal agency’s proposed “total ban” on commission offers from sellers to buyer brokers — both on and off the MLS — itself violates antitrust law and the First Amendment’s free speech provision.

“MLS PIN cannot enter into an agreement to ban the publication of free-market compensation offers without offending the very antitrust principles DOJ claims to be protecting. To impose such a ban through a federal injunction would also suppress speech that is protected under the First Amendment.”

Moreover, MLS PIN contends that “an evaluation of the proposed class settlement does not require a mini-trial on fiercely disputed antitrust issues,” but rather whether the deal is “fair and reasonable to the class members.”

Let’s be real: The back and forth we’re seeing in the courts could go on for years with appeals and arguments on both sides. In the meantime, you’ve got clients to serve and a business to run. As always, our goal is to make sure you have the tools you need and expert insight from some of the best minds in the business to help you make sense of the slow-grinding gears of government and the judiciary.

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