By Michael T. Jackson
The next several days are shaping up to be an eventful period related to the ongoing litigation related to U.S. buyer broker compensation. Multiple key milestones are approaching that mobility professionals should monitor closely. These developments will reveal the potential impacts on the U.S. real estate process change associated with the National Association of Realtors (NAR) settlement and how mobility professionals and transferees will have to navigate new processes moving forward.
MLS Network Decisions on NAR Settlement Opt-ins
18 June is the deadline set by NAR within its proposed settlement for multiple listing service (MLS) networks that are not fully owned by a NAR-affiliated organization to decide whether to opt into the terms of the settlement. Approximately 30 MLS networks have the option to decide whether to opt into the proposed settlement. On 28 May, Northwest MLS, which includes Settle and most of Washington state, became the first major MLS to announce it was not opting into the settlement. By opting out, NWMLS is not required to follow the terms of the NAR settlement, but NWMLS has indicated that many of the provisions of the settlement have already been in place and required in Washington state since new state laws went into effect on 1 January of this year.
Additional MLS networks could also opt out of the settlement terms, and the choices made by these MLS networks will be important for mobility professionals to watch because these decisions will help shape the processes and requirements that will be required in locations where a residential real estate transaction is occurring.
Additional Insights From the U.S. Department of Justice
The Department of Justice (DOJ) is scheduled to submit legal filings on 20 and 21 June in multiple legal cases related to buyer broker compensation, including the Nosalek and DOJ vs. NAR cases. The DOJ’s recent statements around the ongoing litigation and proposed settlements have primarily been associated with the Nosalek case, including in a February statement of interest filed with the court.
Most recently, an attorney for the DOJ, Jessica Neal, indicated in a 22 May hearing related to the Nosalek case that while the DOJ saw the NAR settlement terms as “an improvement,” it believes that “offers of compensation should not be made anywhere, but certainly not on the MLS.” This statement was the first statement shared by the agency on the NAR proposed settlement since it was announced in March.
With the legal filings this week, the DOJ will have an opportunity to leverage the opportunity to clarify or expand on its position regarding the NAR settlement and the anticipated process changes. If the DOJ does include statements in its filings, mobility professionals will need to keep an eye on what position the DOJ takes and how NAR, MLS networks nationwide, real estate brokerages, and other stakeholders respond to any DOJ statements.
WERC and the volunteer members of its buyer broker ad hoc group will continue to monitor developments and will provide updates as available.
To learn about WERC’s advocacy efforts, view the public policy page. You will be able to view WERC’s public policy principles; discover the key issues WERC is focused on; and read WERC’s statements, comments, and letters.