A federal jury today agreed with the plaintiffs that organizations such as Keller Williams, Berkshire Hathaway HomeServices of America, and the National Association of Realtors had violated the law by conspiring to inflate commission rates.
Their attorney then filed an additional lawsuit against the other large brokerages, including Compass.
There’s enough for several blog posts here! Let’s begin with the first problem:
In this trial, the defense was pathetic, and the realtors will likely lose in appeals court too.
The defense attorneys rode in cocky and notched it up on the first day when they said the plaintiffs have the burden of proving their case…..and the defense may not even call a witness! Then when they did call a witness, it just had to be the CEO of NAR, Bob Goldberg, whose arrogance may be unrivaled.
He offered the following:
The CEO returned to the stand on Tuesday to face cross-examination from plaintiff party’s attorney Michael Ketchmark. During the cross, Ketchmark tried making an analogy — not for the first time — between the allegations facing NAR and the hypothetical of chicken producers inflating prices.
Goldberg argued the analogy was “apples and oranges” because real estate agents offer a service, not a product. When Ketchmark continued his analogy and pressed Goldberg on whether he needs an explanation of antitrust law, the CEO responded, “No. I need you to explain to me the chicken law.”
What the defense never considered was that the jury came into the courthouse with the same biases/prejudices that every American has considered – realtors are overpaid, and it’s a racket. The industry never bothers to educate the public, so you can’t blame the jurors or anyone else for thinking that we need to be taken down a notch…or two.
When Bob made his crack about chicken law it had to make every juror hate him even more. Sure, it was kinda funny but this is no time for wisecracks when billions of your members’ money is on the line!
Gary Keller is a nice guy but his soft-spoken testimony didn’t sway the jury – and you can blame his defense attorneys for asking questions that were too lame and indifferent:
Keller’s was the final testimony in the defense’s bid to argue that broker commissions vary and are not set by real estate companies.
Keller denied in his testimony that a “standard commission” existed, saying agents are responsible for setting their own commissions. He said the company had no say in the commissions charged by agents.
While it is true that realtors are independent contractors and each sets their own commission rates, having a gazillionaire state it towards the end of the trial isn’t going to persuade anyone.
The two most important facts of the case were never brought up:
The sellers should have the right to pay a reward, or bounty, to persuade agents to sell their house.
Every seller pays the listing brokerage the full commission, and it’s the LISTING AGENT who decides how much commission the buyer-agent gets.
For the defense to not bring up these points just shows how arrogant and unprepared they were for this trial. The NAR president didn’t exactly give us a reason to think it might be different next time:
This matter is not close to being final. We will appeal the liability finding because we stand by the fact that NAR rules serve the best interests of consumers, support market-driven pricing and advance business competition. We remain optimistic we will ultimately prevail. In the interim, we will ask the court to reduce the damages awarded by the jury.
In court, NAR presented evidence that consumers are better off and business competition is able to thrive because of our rules and how well local MLS broker marketplaces function. In fact, the NAR cooperative compensation rule for local MLS broker marketplaces ensures efficient, transparent and equitable marketplaces where sellers can sell their home for more and have their home seen by more buyers while buyers have more choices of homes and can afford representation. NAR also presented that REALTORS® are everyday working Americans who are experts at helping consumers navigate the complexities of home purchases and advocates for fair housing and wealth building for all.
Is that all you got? With leaders like this, any future trials will be decided in the same 2.5 hours that it took the jury to decide this one. The only hope is that Compass will hire our own attorneys, and they call on a part-time blogger from San Diego to testify!
People are asking about the NAR lawsuits – hat tip to Susie, Gerry, and Carl!
The lawsuit that began this week contends that realtors force sellers to pay a commission to the buyer’s agent. Two defendants, ReMax and Anywhere (Coldwell Banker, Sotheby’s, etc.) have already come to settlement agreements, though they haven’t been approved by the judge yet. The other two brokerages, Keller Williams and Berkshire Hathaway, plus the National Association of Realtors are the remaining defendants. Their attorney started the proceedings by declaring that the plaintiffs have the burden of proof, and the defense may not call a witness. It is that type of arrogance that got them into this mess!
A summary:
In their trial brief, the plaintiffs in the suit allege that NAR’s Participation Rule, which they refer to as the Mandatory Offer of Compensation Rule, is “a market-shaping and distorting rule” that stifles innovation and competition.
“The Rule requires every home seller to offer payment to the broker representing their adversary, the buyer, even though the buyer’s broker is retained by and owes a fiduciary obligation to the buyer (who may be told, falsely, that the services of the buyer broker are “free”),” the brief said.
They argue that the current practice of the seller’s agent splitting their commission with the buyer’s agent, who typically negotiates for a lower selling price for their client, works against the seller’s interest and only exists due to the alleged anticompetitive rules. The plaintiffs also note that the NAR rule in question requires a blanket offer of compensation for the buyer’s broker regardless of their experience or the level of service they provide the buyers with, and that the compensation offer was only visible to the buyer’s agent and not their clients, until very recently.
“This artificial and severed market structure created by Defendants’ conduct deters price-cutting competition and innovation, resulting in inflated commissions,” the brief states. “The Mandatory NAR Rules impede the ability of a free market to function in the residential real estate industry, and the plain purpose and/or effect of the Rules is to raise, inflate, or stabilize commission rates.”
In the brief, the plaintiffs claim that the other defendants in the suit colluded with NAR to enforce this and other NAR and MLS policies.
“The Corporate Defendants compel compliance in multiple ways, including by requiring their franchisees, subsidiaries, brokers, and agents become members of NAR; writing the NAR Rules into their own corporate documents; and requiring that their franchisees, subsidiaries, brokers, and agents become members of and participants in the Subject MLSs — entities that compel NAR membership and adopt the mandatory NAR Rules,” the brief reads.
The brief notes that Craig Schulman, the director of Berkeley Research Group and professor of economic data analytics at Texas A&M University, will be an expert witness for the plaintiffs at trial. In studying transaction data from NAR and other parties, the brief states the Schulman has concluded that “(a) the NAR Rules have anticompetitive effects; (b) the NAR Rules caused a seller to pay his adversary (buyer broker) and that, but for the conspiracy, a seller would not pay the buyer broker; and (c) all class members were impacted.”
The brief also notes that Schulman will testify that NAR’s rules have stabilized commission rates at an “anticompetitive level,” noting that commissions have remained at 6% for several years.
Unfortunately, none of the reality of what happens on the street will get introduced during the trial. Instead, it will be ivory-tower guys hoping to persuade the judge and jury (one of which has to breast-feed her infant every 1.5 hours) that the whole commission thing is out of control and someone is to blame.
But the defendants have a good point:
NAR also argued that the plaintiffs do not have the ability to sue for damages —which some believe could reach as much as $4 billion in this case — because under federal and Missouri antitrust law, only “direct purchasers” can be allowed to sue and the plaintiffs have not bought anything directly from NAR or the other defendants.
“And, according to those same Model Rules and listing agreements, Plaintiffs did not directly pay cooperating agents, NAR, or the other Defendants; sellers only directly pay their listing agents and only directly receive services from their own agents,” the brief states. “Therefore, at best, Plaintiffs might claim that they paid their listing agents (who are not parties to this case) who, only then, paid Defendants. But such an indirect claim is prohibited by Supreme Court case law.”
Home sellers pay the full commission to the listing brokerage. It is the listing agent who declares in the original listing agreement of how much of the full commission they are willing to pay the buyer’s agent. None of this will be discussed during this trial, but it’s the most important part!
The plaintiffs should be suing the individual listing agents – good luck with that!
In the end, the defendants might be found guilty, and they will appeal for years – the American way! Or it’s more likely that they will settle in the next couple of weeks because the ReMax and Anywhere settlements were only $55 million and $85 million, which is pennies.
Part of the settlement package will be that the MLS will no longer be obligated to display ANY commission to be paid to the buyer’s agent. It will cause two things to happen:
MORE steering by the buyer-agents to the homes that are paying a healthy commission (bounty).
Buyer-agents trying to convince their buyers to pay them the buyer-side commission.
Kayla is faced with this dilemma in New York City. Did you know that 2/3’s of the population in Manhattan are renters? It’s a big business! But the listing agents don’t offer a tenant-agent commission, which means Kayla has to get paid by her tenants upon finding them new home to rent.
The results:
She has had the landlord’s listing agent pull aside her potential tenant and tell her to ditch Kayla and save the money, and go through him directly. Apparently they aren’t concerned with their reputations!
She has also had her potential tenants be reluctant to sign an tenant-agent agreement because they see apartments being advertised by the listing agents. They want to reserve the right to go direct to the listing agent, and usually they do. As a result, Kayla only works with those who appreciate her advice.
The idea that home buyers will hire and pay their own buyer-agents is a great idea…..in theory.
The reality is that buyers will go direct to the listing agents when they see an interesting new home for sale. Those listing agents will be advertising to those buyers directly, and flat-out encourage them to get a better deal by going through them.
They wait until the week that the trial starts? She should have said ‘regularly defraud MORE clients’.
The National Association of Realtors laid out a doomsday scenario for the industry in the case home sellers prevail in two landmark antitrust cases.
The group warned that a ruling in the plaintiff’s favor could render buyer’s agents unaffordable, block equal access to listings and restrict buyer choice, NAR’s general counsel Lesley Muchow said. The trade group held the online webinar five days before Sitzer/Burnett, the first of the two closely watched suits, is slated to start trial in Kansas City.
“This would be bad news for consumers,” Muchow said. She added that if NAR isn’t allowed to continue with some of its practices, “we would be forced back into the 19th Century or what we see as the Wild West, where unscrupulous people could regularly defraud clients.”
Muchow argued that if the lawsuits’ results upset local MLS systems, buyers would have fewer homes to choose from and sellers would lose exposure to their properties.
“Buyers would have to visit every single broker in town in order to see all of the available inventory that is out there for them,” Muchow said.
This scenario would likely lead to outdated and inaccurate listing information, she said, and would cost brokers more money if they have to pay to feature their listings on third-party platforms.
Jury selection will begin on Friday.
Both of the landmark lawsuits center on NAR’s “participation rule,” which critics claim violates antitrust laws by inflating commissions charged to home sellers.
The rule’s interpretation was largely understood as requiring listing brokers to offer compensation to buyer’s agents, but a spokesperson for NAR said that it only “requires participants to communicate an offer of compensation to other MLS participants and that offer can be any amount, including $0.”
PLEASE DO NOT CONTACT ME FOR OPEN HOUSES. Title and Escrow to be seller’s choice. Deposit to be in escrow within 48 hours of acceptance and seller has the right to cancel without providing a notice to perform, if the deposit isn’t received by escrow within 48hrs.
**NO MORE SHOWINGS, MULTIPLE OFFERS OVER ASKING PRICE IN HAND**
For offers full price and above, seller is offering a full commission of 3%
Offers do by Wednesday 5pm
Views are not guaranteed and can be abstracted at any time.
24 HOUR NOTICE FOR QUALIFIED BUYERS ONLY! DO NOT WALK PROPERTY, PLEASE! SKIDDISH TENANTS.
Seller is not open to making repairs or offering buyers a credit for repairs.
Paint is fire proof
Please, no blind offers. Please do not call to ask if I have offers, email your highest and best.
Please do not submit any narratives or photos of your buyers regardless of how cute they may be- only the actual offer will be submitted. The super cuddly dogs do not convey with the house. Seller is NOT contingent on purchase. Please do not play the harps (I know it is soooo tempting).
Buyer must have inspection completed by certified ASHI, CREIA, NACHI, or NAHI Inspection Company.
Possible noise from traffic, aircraft and watercraft activities, appliances, and neighbors etc. Buyers are recommended to investigate neighborhood safety by contacting the local police department.
Owner is a fragile, elderly lady with a bad back. Don’t make it weird, thanks.
I have mentioned repeatedly that the buyer-agent is a dead man walking. All forces within the industry are combining to push the buyer-agent out of the equation, and home buyers will be worse off because they will only have faux representation when buying directly from the listing agents.
Everything is negotiable……well, except the buyer-agent commission. From the Code of Ethics:
The Code of Ethics Standard of Practice 16-16 prohibits buyer-brokers from “using the terms of an offer to purchase to attempt to modify the listing broker’s offer of compensation.” Thus, the buyer-broker cannot attempt to condition the purchase of a home on the seller-broker’s agreement to adjust the amount of compensation offered to the buyer-broker.
Second, the Code of Ethics’s Standard of Practice 3-2 requires that any modification in the compensation offered to the buyer-broker “must be communicated to the [buyer-broker] prior to the time that [buyer-broker] submits an offer to purchase the property. And once a buyer-broker “has submitted an offer to purchase the property, the listing broker may not attempt to unilaterally modify the offered compensation.”
Third, Case Interpretation #16-15 advises that any negotiations regarding the buyer-broker’s commission “should be completed prior to the showing of the property.”
The buyer-agent is NOT allowed to negotiate their commission during the offer process!
What’s worse is that any negotiation of the commission must happen BEFORE the home is shown to the buyer. How many listing agents will agree to pay more commission before the buyer sees the home? The answer is zero.
The pending lawsuits against realtors are all about the seller being required to pay the buyer-agent’s commission. Miraculously, ReMax and Anywhere have already settled, and the whole thing could get resolved shortly. But it has been univeral among observers that the end result will be that home sellers will not be required to pay ANY commission to the buyer-agents. It will be optional instead.
Two things will happen:
The buyer-agents will be even more likely to steer their clients to where they can get a commission.
There will be even more shenanigans by listing agents.
Rob lays it out here, starting around the 26-minute mark:
It means that the buyer-agents will have to either live with the commission that the seller is offering (if any) and steer their buyers to those homes, or have an agreement with their buyer to be paid directly by them. While that sounds nice, it is a complete change to the business and most agents won’t be able to justify being paid for their services. When buyers can just go direct to the listing agent for free – which the listing agents will be advertising – they will be very reluctant to be contractually obligated to pay a buyer-agent.
I’m on track this year to beat my production volume of 2022! From TRD:
During the pandemic, home sales boomed on a foundation of low-lying interest rates. Now real estate professionals are seeing the slowest market in 35 years.
With mortgage rates higher than 7 percent, Southern California home sales have fallen by almost half over the past two years.
Even with home prices inching back up as sales plummet because of the few number of homes for sale, real estate agents, home inspectors, escrow officers and mortgage brokers starve for business.
The average real estate agent earned 19 to 29 percent less business in the latest year measured, according to Real Data Strategies. At least 5,100 agents who made money in the prior year ended the most recent 12-month period without a single sale.
First we learned that the CEO of the San Diego Association of Realtors embezzled $1,000,000+, and now we hear that the National Association of Realtors is full of scumbags. The NY Times ran a story over the weekend that accused the NAR president of sexual misconduct and he resigned this week – but denied any wrongdoing, of course.
More stories have come out this week from various insiders, summarized here:
Here are comments left by listing agents in the MLS confidential remarks over the last month – some are scoldings!
No Showings until Open House, Then use showing time. Seller will only show WED/ SAT MUST USE SHOWING TIME!!! Must have a Pre qual To Enter Per seller Instructions.
Directions to property: 33.149132252579626, -117.31781391389755
All other showings after the open house to be requested via docusign.
Text agent, wait for conformation, then go. Sentri only. If you do not have Supra, agent to accompany. No one-day codes.
No shoes allowed in the home NO EXCEPTIONS., I will provide house slippers. This home has many ” breakable items” Please hold the children’s hands, this is not a place for children to play.
Credit toward garbage disposal.
Back on market as buyer past away.
Multiple offers well over asking. No more showings.
**MULTIPLE OFFERS NO MORE SHOWINGS AT THIS TIME**
NO MORE OFFERS WILL BE ACCEPTED **NO EXCEPTIONS**
Will show in till April 28 (published on May 4).
Call agent if buyer is interested.
Motorcycle helmet and jacket rack does NOT convey.
DO NOT DISTURB OCCUPANTS! DO NOT GO TO FRONT DOOR! House will not be shown until it is Active on the MLS.
AGENTS PLEASE READ!! NO MORE SHOWINGS AT THIS TIME.
Please do not call. Vacant lock box. Do Not use Showing Time. I do not support Zillow and will not take their call. ***AGENTS*** We are in deep negotiation with offers from investors.
Booties/Shoe coverings mandatory.
DO NOT ADD ME AS A RECEIVER OF THE DOCUSIGN FILE. Offer submission instructions must be followed.
Please use GPS or you might get lost.
PLEASE DO NOT CONTACT ME FOR OPEN HOUSES.
Sold before going into computer.
SELLER RESERVES THE RIGHT TO REFUSE ANY AND ALL OFFERS.
BUYER AGENT FORFEITED COMMISSION OF 2.5%
WELCOME to your Home!
Do not contact listing agent for appointments.
NOTE: SALE WENT PENDING PRIOR TO INPUT ON MLS. *CALL LISTING AGENTS FOR MORE INFO. THIS IS A STANDARD REGULAR SALE.
I like to promote my listings at the local broker meetings, just in case someone might have a buyer. It would be really beneficial if the big agents attended these meetings and participate like they do in La Jolla – the camaraderie alone is worth it. Then the open houses of the new listings later in the day help agents sharpen their market knowledge:
Hat tip to our seller who noticed a new paragraph in the counter-offers this year that went undetected by everyone I know – and we go to the Forms Update every year to hear about changes!
Paragraph 1C in the counter-offer identifies the Appraisal Gap:
When we first read this, it sounded like the purchase price would automatically be lowered to the appraised value without negotiation.
But Gov at the C.A.R. legal office submitted this response:
It means that if, for example, the buyer made an offer of $500,000, contingent on the property appraising at $475,000, and the Seller countered at $520,000 and the buyer accepts the counter, the buyer’s appraisal contingency is automatically adjusted to be $495,000. In other words the $25,000 “appraisal gap” is carried over in the counter. (I admit the language is a little confusing).
Here is the part of the contract that he references:
I’ve never seen anyone put a lower value in Paragraph L(2), but we just started using this version.
The touchy part was that the counter-offer comes later – after the contract verbiage above – which would mean that it would supersede it. It looked like the buyer could waive the appraisal contingency, but then the counter would make it valid again.
