The

Council
of
Multiple
Listing
Services
is
joining

Northwest
MLS
in
filing

a
motion
to
request
that
it
can
file
an
amicus
curiae
brief
in
the
Nosalek

commission
lawsuit.

In
its
motion
filed
on
Wednesday,
CMLS
said
its
amicus
curiae
brief
is
in
repsonse
to
the


Department
of
Justice’s statement
of
interest
which
was
filed
in
early
February
in
relation
to
the

proposed
settlement
agreement
reached
by
the
Nosalek
plaintiffs
and
defendant

MLS
Property
Information
Network

in
July
2023.

Judge
Patti
Saris,
who
is
overseeing
the
Nosalek
suit,
would
have
to
reopen
the
lawsuit
in
order
for
NWMLS
to
file
its
brief.
The
judge
stayed
the
case
pending
action
by
a
multidistrict
litigation
panel,
which
is
set
to
decide
this
spring
if
nine
of
the commission
lawsuits can
consolidate.

In
its
statement
of
interest,
the
DOJ
advocated
for
the
prohibition
of
cooperative
compensation,
meaning
that
“sellers
would
be
responsible
for
determining
only
the
compensation
of
their
own
broker
in
the
listing
contract
…
[and]
buyers
would
be
responsible
for
determining
the
compensation
of
their
own
broker
in
a
buyer-broker
representation
contract.”

The
DOJ
argued
that changes similar
to
those
proposed
in
the settlement
agreement —
including
the
lowering
of
the
required
compensation
amount
to
$0,
or abandoning
the
requirement for
listing
brokers
to
make
a
blanket
offer
of
compensation
to
the
buyer’s
broker
in
order
to
list
on
the
MLS,
which
was
a
change
NWMLS
made
in
2019
—
have
done
nothing
to
decrease
agent
commissions.

In
its
proposed
brief,
CMLS
writes
that
in
its
statement
of
interest,
the
DOJ
is
looking
for
“an
injunction
that
prohibits
offers
of
buyer
broker
compensation
by
MLS
PIN
participants.”

The
MLS
trade
group,
which
represented
225
MLSs,
including
MLS
PIN,
wrote
that
it
opposes
the
effort
of
the
DOJ
to
“impose
a
policy
preference
on
the
U.S.
residential
real
estate
market
that
lacks
empirical
support,
conflicts
with
principles
of
the
Sherman
Act,
and
has
negative
practical
implications
for
consumers
which
DOJ
has
not
taken
into
account.”

The
association
notes
in
the
draft
of
its
proposed
brief
that
its
interest
in
the
“proposed
settlement
stems
from
the
fact,
as
DOJ
highlights,
that
“several
pending
cases”
are
adjudicating
MLSs’
adoption
of
the
mandatory-compensation
rule
of
the


National
Association
of
Realtors
or
similar
policies.”

CMLS
goes
on
to
argue
that
the
court
should
evaluate
the
settlement
agreement
proposed
by
the
plaintiffs
and
MLS
PIN
without
any
reference
to
the
DOJ’s
statement
of
interest.
According
to
CMLS’
reading
of
the
proposed
agreement,
two
main
policy
changes
are
proposed.
The
first
change
is
that
MLS
PIN
is
agreeing
to
obtain
certificates
from
their
seller
clients
saying
that
they
understand
that
MLS
PIN
does
not
require
sellers
to
offer
compensation
to
buyer
brokers
and
that
sellers
are
not
required
to
compensate
the
buyer’s
broker
even
when
asked
to
by
the
buyer.
The
second
change
is
that
MLS
PIN
has
agreed
to
get
rid
of
its
rule
requiring
the
listing
broker
to
make
a
blanket
offer
of
compensation
to
the
buyer’s
broker
in
order
to
list
a
property
on
the
MLS.

The
brief
states
that
the
court
should
ignore
the
DOJ’s
objections
to
these
rule
changes
for
a
variety
of
reasons.
First,
CMLS
argues
that
data
from
NWMLS,
which
made
a
similar
rule
change
in
2019,
shows
that
commission
offers
decreased
“faster
than
they
had
in
the
prior
two
decades”
after
the
2019
rule
change.

Second,
the
trade
group
points
out
that
the
practice
of
sellers
and
listing
brokers
paying
buyer
brokers
is
lawful
throughout
MLS
PIN’s
service
area.

Third,
it
argues
that
the
DOJ
is
ignoring
the
major
disruption
a
transition
to
its
preferred
policies
will
cause
consumers
and
“the
many
thousands
of
third-party
businesses
and
entities
involved
in
real
estate
in
transactions.”

“DOJ
incorrectly
predicts
a
glitchless
transition
without
accounting
for
the
complexity
of
the
real
estate
transaction
(and
without
citing
any
sources),”
the
proposed
brief
states.

Additionally,
CMLS
argues
that
the
DOJ’s
policy
preferences
“would
require
MLSs
to
impose
restraints
on
brokers
not
necessary
to
advance
the
MLSs’
procompetitive
purposes.”

“Prohibiting
offers
of
compensation
from
brokers
and
sellers
is
a
drastic
imposition
of
MLS
regulation
on
legal
activities
of
listing
brokers
and
sellers.
DOJ
offers
no
evidence
that
such
a
change
is
necessary
to
achieve
procompetitive
purposes,”
the
brief
states.
“Furthermore,
the
SOI
does
not
consider
ways
(perhaps
today
unimagined
by
DOJ,
MLSs,
and
even
brokers)
that
listing
brokers
might
use
offers
of
compensation
to
buyer
brokers
to
spur
greater
price
competition.”

Saris
has
yet
to
rule
on
either
CMLS’
or
NWMLS’
motions,
but
she
has
ruled
that
MLS
PIN
and
the
Nosalek
plaintiffs
can
file
separate

responses
to
the
DOJ’s
statement
of
interest. Responses
from
the
parties
were
due
on
Thursday.

In
an
emailed
statement,
a
spokesperson
from
CMLS
noted
that
the
trade
group
has
spent
the
last
several
years
stressing
the
value
and
importance
of
the
MLS.

“Last
fall,
CMLS
published
a
white
paper
on
the
Value
of
MLS
and
submitted
it
to
the
DOJ.
We
then
met
with
key
staff
from
the
antitrust
division
of
the
DOJ
to
further
explain
key
components
of
the
MLS
and
better
understand
their
concerns.
The
discussion
was
robust,
and
we
left
knowing
there
was
more
work
to
be
done,”
the
spokesperson
wrote.

“Weeks
later,
on
February
15,
the
DOJ
published
its
statement
of
interest
(SOI)
in
the
Nosalek
case.
By
this
time,
the
initial
results
of
our
economic
analysis
were
complete
and
did
not
back
the
DOJ’s
position.
As
the
trade
organization
for
MLSs,
it
was
our
responsibility
to
weigh
in
and
balance
the
record. CMLS
has
long
championed
the
MLS
as
an
efficient,
transparent,
competitive
marketplace
that
benefits
consumers.
The
brief
validates
that
position.”

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