Realtor subscribers of MLSPIN could be out of compliance with NAR settlement

Will MLSPIN require buyer agency agreements? Can they?

Earlier this week Judge Patti Saris in Boston stayed (put on hold) the MLSPIN vs Nosalek class action lawsuit pending final approval of the NAR settlement, scheduled for November. But Tuesday’s ruling came five days after MLSPIN issued new rules going into effect “soon” according to MLSPIN.

Consequently, the rules expected to go into effect for NAR members differ from the soon to be MLSPIN rules and might place Realtor subscribers of MLSPIN out of compliance with the NAR settlement as of August 17th.

MLSPIN opted out of the NAR settlement.

Specifically, the MLSPIN rules do not require buyer agency agreements as the NAR settlement does. Importantly, MLSPIN is broker-owned, not Realtor owned, but it is widely believed that the majority MLSPIN subscribers are Realtors (not me).

Will MLSPIN broker subscribers, who are not members of an organization found guilty of a vast price fixing scheme, have a competitive advantage over Realtor MLSPIN subscribers who must use buyer agency agreements to comply with the NAR settlement?

Is it possible and/or even legal for MLSPIN to require buyer broker agreements for all subscribers regardless of Realtor membership? What would the reaction be from non-Realtor MLSPIN subscribers to a buyer agency agreement mandate from MLSPIN? In any case, how could such a rule be enforced?

[remember, I’m not a lawyer, too smart to go to law school]

Additional details are needed regarding seller offers of compensation under the new MLSPIN rules.

The MLSPIN rule announcement of June 20th indicates that “soon, we will roll out additional changes set forth in the proposed settlement. First and most importantly, offers of compensation, if any, will be made by the seller.” The announcement does not indicate how these offers may or may not be communicated on MLSPIN if at all. The implementation of seller offers of compensation raise similar NAR settlement compliance issues for Realtor subscribers of MLSPIN.

The NAR settlement prohibits offers of compensation on the MLS but allows off-MLS offers as long as those offers do not commingle with aggregated data from an MLS feed.

However, in a verbal statement to Judge Saris in May, an attorney for the Department of Justice stated that offers of compensation should not appear “anywhere” and the Department of Justice has not issued a written statement on the proposed NAR settlement.

This ambiguity coupled with a federal court ruling out of Pennsylvania recently that allowed an anti trust case to proceed, even though the MLS defendant opted *into* the NAR settlement, raises the question of whether the proposed NAR settlement itself is compliant with the Sherman Anti-Trust Act.