The $3.95 million settlement aligns with NAR math, but unlike NAR’s agreement, allows the Massachusetts MLS to continue displaying offers of compensation.
Dave Gallagher
Stephanie Reid-Simons3 mins
The judge in a long-running commissions case will allow a Massachusetts MLS to continue to display offers of compensation, saying she has not seen proof that the practice is anticompetitive.
However, in granting preliminary approval of the $3.95 million deal on April 1, U.S. District Court Judge Patti Saris invited the Department of Justice to provide evidence showing otherwise before she gives the final OK.
Saris also expressed concern over the difference between the MLS PIN settlement and the National Association of Realtors settlement, which required the removal of offers of compensation from Realtor-owned multiple listing services.
"The biggest red flag to me is why did NAR agree to it and you are not," Saris said, addressing the attorney for MLS PIN. "I don't know why you care so much."
The deciding factor: Judge Saris said she had been "firmly in the government's camp" until she heard that only 25% of sellers had made offers of compensation on the MLS PIN site since last summer, when the MLS made such offers optional.
"I would like to be consistent with NAR" and not allow offers of compensation, Saris said. "But this number surprised me."
Katherine Clemons, the attorney representing the DOJ, said "the government's position is that blanket upfront offers of compensation anywhere are bad for competition in broker services." That includes, but is not limited to the MLS.
That wasn't enough for the judge, however. "You didn't give me any proof," Saris said.
How we got here — and the DOJ's role: The original proposed settlement agreement with MLS PIN was reached in 2023, but the process slowed after the U.S. Department of Justice became involved in the case through several statement of interest filings.
The DOJ — which has also inserted itself in the NAR settlement and other industry cases — wasn't happy with the proposal to leave the offer of compensation field in place with the adjustment that home sellers could put in zero dollars, calling it a cosmetic change that will keep commission fees inflated.
The DOJ also argued that the monetary amount — currently proposed at $3.95 million, up from the $3 million originally agreed to — would be insufficient to cover the lawsuit's expanded class, which the agency said includes an unspecified number of land and mobile home sellers. MLS PIN's attorneys said the figure aligned with NAR's settlement math.
At the April 1 hearing, Saris rejected the proposed expansion of the class to include non-residential transactions, saying those "seem like a different beast."
What's next: A final settlement hearing will be set for August or September, the judge said, adding, "I'm looking forward to more info on this." She also said she's keen to wrap up the case, which was originally filed against MLS PIN and multiple brokerages in 2020.
The plaintiffs in the case have already come to an agreement with the brokerage defendants — RE/MAX, Anywhere, HomeServices of America and Keller Williams.
