BAM Key Details: 

  • Anywhere Real Estate and RE/MAX have agreed to a proposed settlement in the Nosalek commission antitrust lawsuit. 
  • Plaintiffs in the Nosalek case allege that MLS Property Information Network (MLS PIN) adopted a policy similar to NAR’s cooperative compensation policy, requiring seller agents to offer compensation to buyer agents in order to list a property on the MLS. 
  • A settlement reached between plaintiffs and MLS PIN required the latter to cooperate in ongoing litigation against other defendants, including Anywhere and RE/MAX. 
  • The proposed settlement between plaintiffs and Anywhere and RE/MAX includes a request for a 30-day stay to discuss terms. 

Anywhere Real Estate and RE/MAX are in the news again for agreeing to a proposed settlement in the Nosalek commission antitrust lawsuit (formerly known as the Bauman lawsuit). 

At the heart of this lawsuit is the “Buyer Broker Commission Rule,” which is another name for the cooperative compensation rule disputed in the Sitzer/Burnett and Moehrl lawsuits. 

Here’s what we know so far. 

The Nosalek case

Plaintiffs in this case allege that MLS Property Information Network (MLS PIN), a broker-owned MLS, adopted a policy similar to that of the National Association of Realtors (NAR) requiring listing brokers to offer compensation to buyer agents before listing a property on the MLS. 

In early September, a settlement reached between the plaintiffs and MLS PIN was granted preliminary approval by Judge Patti Saris. Terms of that settlement included a $3 million payment and required MLS PIN to cooperate in continued litigation against other defendants named in the case—including Anywhere, RE/MAX, Keller Williams and HomeServices of America

By early October, however, at the request of attorneys from the Department of Justice’s Antitrust Division, Judge Saris had approved a two-month deadline extension to review the proposed settlement, given the DOJ’s “significant concerns with the planned rule changes.” 

Terms of previous settlements and their impact on Nosalek

Terms for the settlement between Anywhere and the plaintiffs in the Sitzer/Burnett and Moehrl cases include $83.5 million in relief, changes to Anywhere business practices and commission structure, and an end to obligatory NAR membership for affiliated brokerages and agents. 

Anywhere’s settlement also requires agents to clearly disclose the negotiability of agent commissions in their conversations with clients. Seller agents with Anywhere are no longer required to offer compensation to buyer agents in the listing agreement, though many will likely continue to do so because it serves their client’s interests. 

The settlement also rules out the use of technology to sort listings by buyer agent compensation offers without consent from the buyer. 

For their part, RE/MAX agreed to pay $55 million in relief and to discontinue the practice of forcing home sellers to pay buyer agent commissions. 

The Sitzer/Burnett trial started on Monday, October 16th and is expected to last about three weeks. Plaintiffs in the case allege a conspiracy between the National Association of Realtors (NAR) and real estate corporations to fix commission rates and inflate costs for home sellers, ultimately making homeownership more difficult for many. 

According to Anywhere’s legal filing notes, the proposed Nosalek settlements include a request for a 30-day stay, with the various parties “presently conferring regarding the appropriate treatment of the Nosalek plaintiffs and the class they purport to represent.” In short, there will be ongoing discussions to determine how to handle the legal matters related to the Nosalek plaintiffs.

Anywhere declined to comment on the new legal filing. 

A spokesperson for RE/MAX told Inman (via email) that we are pleased that the Nosalek plaintiffs have agreed that the substantive terms of the Burnett/Moehrl settlement should include the proposed MLS PIN class members in the Nosalek case.” 

Stay tuned for more as these cases develop.