Key facts
- Plaintiffs in the Sitzer/Burnett and Gibson cases have filed a motion to enforce a data-sharing agreement with Multiple Listing Services (MLSs).
- The data sought includes listing and commission information promised by MLSs that opted into the National Association of Realtors settlement.
- A vendor, FBS, has reportedly declined to release the data without explicit permission from each MLS.
- The plaintiffs proposed a rule allowing seven days for MLSs to object to data release, with silence deemed consent.
- The data is considered essential for verifying compliance with new rules regarding buyer agent agreements and compensation structures.
- The author suggests that 'testers' may be used to document non-compliance, potentially leading to legal action and antitrust damages.
Plaintiffs in the Sitzer/Burnett and Gibson real estate commission lawsuits have asked a judge to enforce a data-sharing agreement with Multiple Listing Services (MLSs). The data, which MLSs promised to hand over upon opting into the National Association of Realtors settlement, is crucial for verifying compliance with new rules regarding agent agreements and compensation. A vendor, FBS, which powers Flexmls, has reportedly declined to release the data without explicit permission from each MLS, leading the plaintiffs to propose a rule that treats silence as consent after a seven-day objection period.
The article argues that this data serves not only a compliance function but also provides raw material for further investigation into industry practices, such as how listings are routed and how commissions are structured. The plaintiffs' legal team, likely led by Michael Ketchmark, is continuing to file motions nearly three years after the initial verdict, indicating a sustained effort to ensure adherence to NAR's settlement terms.
Brokers and agents are warned that non-compliance with the new rules, such as requiring written buyer agreements with specific compensation amounts, could be documented by 'testers' posing as consumers. This practice, legally established by a 1982 Supreme Court ruling, could expose firms to significant antitrust damages. The author advises real estate professionals to audit their files, retrain agents on settlement rules, and assume that potential buyers may be testers to mitigate future legal risks.
The motion also highlights the fragmented nature of the MLS system, with 562 organizations facing the compliance question individually. The author suggests that the MLS community should develop a collective approach to these challenges rather than responding in isolation under tight deadlines.