BAM Key Details:

  • Attorneys for the defendants continued to lay out their case on Tuesday, October 24, 2023—Day 7 of the Sitzer/Burnett trial. 
  • Lead attorney for the plaintiffs, Michael Ketchmark, cross-examined NAR CEO Bob Goldberg.
  • NAR Director of Engagement Rodney Gansho then took the stand, called and questioned by NAR attorney Ethan Glass and cross-examined by Michael Ketchmark. 

Day 7 of the Sitzer/Burnett trial began with a cross-examination of NAR CEO Bob Goldberg by the plaintiffs’ lead attorney Michael Ketchmark

From there, NAR Director of Engagement Rodney Gansho took the stand. After NAR attorney Ethan Glass questioned him, Ketchmark did the cross-examination, focusing on the consequences for multiple listing services and local associations that don’t follow NAR’s mandatory policies. 

Michael Ketchmark cross-examines NAR CEO, Bob Goldberg

NAR CEO Bob Goldberg took the stand again this morning for cross-examination by the plaintiff’s lead attorney Michael Ketchmark. 

According to Inman’s Andrea V. Brambila, Ketchmark “tried again to make an analogy between chicken producers inflating prices and what NAR is doing.” 

(Anyone else stuck on the word “again”?)

Here are the highlights:

  • Cross-examination began at 10:15 am CDT
  • Ketchmark presented the chicken producer analogy. Goldberg called it an “apples and oranges” comparison since agents offer services, not products. 
  • Asked whether the chicken producers had violated the law by inflating prices, Goldberg answered that he couldn’t say. Ketchmark then asked, “Do you need me to explain antitrust law?” to which Goldberg replied, “No. I need you to explain to me the chicken law.” 
  • Ketchmark then presented evidence of several ways NAR talks about commissions
  • On redirect, NAR attorney Ethan Glass clarified that Goldberg had not said NAR doesn’t talk about commissions because it’s taboo; he said they don’t train their agents to set commissions or specify what commission rates should be. 

NAR Director of Engagement Rodney Gansho takes the stand

NAR attorney Ethan Glass then called NAR Director of Engagement Rodney Gansho to the stand. 

Here’s how that went down:

  • Gansho broke down the particularities of NAR’s governance system, including its board of directors and committee structure. He also explained parts of the NAR Code of Ethics, particularly Articles 1, 3, 12, and 16. 
  • Gansho also explained NAR’s Clear Cooperation Policy and how it differs from the cooperative compensation rule, which is the policy at issue in this case, 
  • He described the NAR MLS handbook as a tool or a “model” that local Realtor associations can use along with their own rules. Gansho said they don’t have to adopt NAR’s mandatory model rules, but not doing so “would jeopardize their errors and omissions insurance policy.” 
  • He pointed out, “they can purchase their own insurance if they want to.” And he said NAR doesn’t enforce the rules; local MLSs do, in conjunction with local associations. 
  • Gansho said the offer of buyer agent compensation in the MLS is just that—an offer—and that it’s 100% negotiable. He also acknowledged that NAR’s recent interpretation allowing listing brokers to offer zero in the compensation field is “relatively new” and counter to NAR’s previous and longstanding interpretation that the offer had to be more than zero. 
  • When an MLS changed its policy to allow zero compensation (though BrightMLS was never named), NAR considered it and decided there was no rule forbidding it. 
  • When Glass asked Gansho whether NAR was behind the MLS’s policy change, Gansho said, “No. We weren’t even aware of it. They never called us.” 
  • When Glass asked him whether leaving the cooperative compensation field blank would be considered the same as zero, Gansho replied, “Blank doesn’t tell you anything. Leaving it blank is not an offer.” 
  • During the lunch break, after the jury left the courtroom, the judge told the plaintiff’s attorney Michael Ketchmark that he tends to talk over witnesses and told Gansho he tended to talk over his own attorney—and to not do that during the cross-examination.

Ketchmark cross-examines Gansho

During his cross-examination of Director Gansho, Ketchmark focused on the consequences for multiple listing services that don’t follow NAR’s mandatory policies. 

Here’s what we learned: 

  • Gansho had previously said (in response to Glass’s questions) that the only consequence is potentially losing insurance coverage. During the cross, he also estimated most MLS executives weren’t deterred by this consequence ‘because they could buy their own [insurance] and it’s not that expensive.” 
  • Ketchmark then produced a 2018 email Gansho had written in which he told attorney Mitch Skinner of the Council of Multiple Listing Services that “continued failure” to follow NAR’s mandatory rules could result in charter revocation for the local association that owned and operated the MLS. The local association could also remove officers from the MLS because they have “effective control” over it. 
  • At one point, Gansho inadvertently provided Ketchmark some ammunition. According to his testimony, when HomeServices’ Jon Coile or anyone else serves on a NAR committee, they owe a fiduciary duty to NAR. Ketchmark immediately seized upon this as an aspect of the alleged conspiracy between NAR and other corporate defendants, to which an exasperated Gansho replied, “There’s no conspiracy here!”

Stay tuned for more updates as the trial continues.