DOJ to Nosalek Judge: Broker Commissions Should be Decoupled
The Department of Justice (DOJ) has called into question a proposed settlement in a significant antitrust lawsuit within the real estate industry, suggesting that the settlement could potentially contravene federal law. The DOJ’s stance is that buyers ought to have the opportunity to negotiate their broker’s commission directly, a move that could significantly alter the landscape of real estate transactions.
The heart of the matter lies in the DOJ’s recent communication with the judge presiding over the Nosalek case, a pivotal commission antitrust lawsuit. The DOJ recommended that the proposed settlement, agreed upon between the plaintiffs and several real estate defendants such as Anywhere, RE/MAX, Keller Williams, and HomeServices of America, be rejected. These entities had previously asserted that the proposed adjustments would counteract the core anticompetitive rule at the center of the lawsuit. However, the DOJ challenges this assertion, expressing concerns that the settlement might perpetuate the same competitive issues it aims to resolve.
The DOJ’s critique underscores that the proposed settlement is unlikely to foster competition or reduce commissions, thus failing to offer substantial benefits to either buyers or sellers. Jessica Leal, a DOJ attorney, emphasized in her legal filing that the approach of allowing sellers and listing brokers to determine the commission for buyer brokers might lead to discriminatory practices, where buyer agents could steer their clients away from listings offering lower commissions.
In lieu of the current system, the DOJ advocates for a model where buyers negotiate directly with their broker, promoting various payment structures, including out-of-pocket payments or arrangements where the buyer requests the seller to cover the broker commission from the home sale proceeds. This suggestion aims to dismantle the anti-competitive practice of listing brokers setting compensation for buyer brokers, a method that the DOJ argues contravenes a more equitable and competitive real estate market.
The central controversy in the Nosalek case revolves around the “Buyer Broker Commission Rule,” proposed by the broker-owned MLS Property Information Network (MLS PIN). This rule mandates that a seller’s broker must offer compensation to the buyer’s broker to list a property on the MLS service, a practice that the plaintiffs argue inflates the costs to sellers and restricts trade, violating the Sherman Antitrust Act.
The original settlement proposition from MLS PIN involved significant changes to its commission policies, including a removal of the requirement for homesellers to offer buyer broker compensation and a clarification on commission negotiations. However, the DOJ’s recent input calls for a more radical overhaul, proposing a prohibition on offers of compensation from listing brokers to buyer brokers altogether, an approach known as “decoupling.”
This suggested change aims to foster a competitive environment where buyers and sellers negotiate broker compensation independently, potentially leading to innovative payment models such as hourly rates or flat fees for buyer brokers. Despite the DOJ’s concerns, it’s worth noting the complexities of implementing such changes, evidenced by similar reforms across the country that have struggled to lower real estate commissions substantially.
In concluding her brief, Leal dismissed the notion that class members would benefit from the proposed settlement’s $3 million payout, arguing for more efficient distribution methods that ensure direct compensation to affected parties.
As the real estate industry braces for impactful changes, the DOJ’s stance in the Nosalek case signifies a significant push towards dismantling longstanding practices that it views as anticompetitive. Whether these suggestions will lead to an era of greater transparency and fairness in real estate transactions remains to be seen, but one thing is clear: the landscape of real estate brokerage is on the cusp of substantial change.
