2/20/2024 

On February 15, 2024, the Antitrust Division of the Department of Justice (“DOJ”) filed a statement of interest regarding the proposed settlement reached by MLS PIN and the plaintiffs in the 2020 Nosalek v. MLS Property Information Network, Inc. et al. case.   

In Nosalek, Massachusetts home sellers filed suit against the MLS PIN multiple-listing service and numerous brokers, alleging that MLS PIN’s buyer-broker compensation rule is anticompetitive and violates federal antitrust laws. MLS PIN’s rule requires listing brokers to submit a blanket, unilateral offer of compensation to buyer-brokers in all listings on the MLS. In the proposed settlement, MLS PIN agreed to pay $3 million, to alter its commission policies to allow cooperative compensation offers to be as low as 0%, and to cooperate against the remaining defendants in the lawsuit.  District Judge Patti B. Saris, who is presiding over the litigation, granted preliminary approval of the settlement in mid-September 2023.  

However, later that month, the DOJ filed a motion to extend the deadline for the final approval of the settlement to permit the DOJ time to submit a statement of interest describing its views on the case. The DOJ now asserts that the proposed changes to the MLS PIN’s buyer-broker commission rule are “insignificant and largely cosmetic.” The DOJ argues that the changes would “not alter the structure alleged in the complaint that currently drives sellers to offer the ‘customary’ commission to avoid the threat” that buyer-brokers will “steer” buyers to properties where a listing broker has offered higher commissions. 

The DOJ proposes an alternative injunction for the settlement, which would prohibit any offers of buyer-broker compensation by MLS PIN participants. The DOJ argues that under that approach, “sellers would be responsible for determining only the compensation of their own broker in the listing contract, while buyers would be responsible for determining the compensation of their own broker in a buyer-broker representation contract.”  This, the DOJ asserts, would foster greater price competition and innovation in the market for brokers’ services. 

The DOJ has asked that the Court deny preliminary approval of the MLS PIN settlement. However, all proceedings in the Nosalek case, including consideration of the settlement, have been paused for the moment. At the request of the plaintiffs, which was not opposed by the defendants, Judge Saris stayed all further proceedings while the Judicial Panel on Multidistrict Litigation considers whether Nosalek and other cases should be transferred to and consolidated before the federal court in the Western District of Missouri, or other location, along with other real estate commission lawsuits. The Panel will hear that request on March 28, 2024, and a ruling on consolidation is expected shortly thereafter.   

We will continue to follow developments regarding the fate of the Nosalek settlement as well as the potential for a multi-district litigation bringing together suits from across the country.