The Department of Justice (DOJ) may not be done with real estate agents and their commissions, but the real estate industry and the class action plaintiffs involved in at least one commission lawsuit are done with the DOJ.
On Tuesday, MLS Property Information Network (MLS PIN) and the plaintiffs in the Nosalek suit, filed requests asking Judge Patti B. Saris for permission to file a reply brief to the DOJ’s supplemental statement of interest filed earlier this month.
MLS PIN and the Nosalek plaintiffs first filed their proposed settlement agreement during the summer of 2023. However, in September 2023, the DOJ filed its first statement of interest in the suit in which it said it had “significant concerns” about the proposed settlement agreement.
MLS PIN and the Nosalek plaintiffs went back to the drawing board in filing an amended settlement agreement, which the DOJ also took issue with. The department’s latest filing was prompted by the plaintiffs’ motion for preliminary approval of the latest draft of their settlement filed in January of 2025.
In its proposed reply brief, MLS PIN did not mince words when it came to sharing its frustrations about the length of time it has taken for the settlement to be approved.
“This case has been effectively paused for over a year for no other reason than to allow DOJ to speak its piece on the fair-and-reasonable compromise achieved between Plaintiffs and MLS PIN,” MLS PIN’s brief states.
The MLS defendant argues that the DOJ’s objections to its proposed settlement agreement are policy-based and not legally sound.
MLS PIN writes that removing offers of cooperative compensation, as is required in all Realtor owned MLSs, which MLS PIN is not, “would harm homebuyers, especially first-time buyers, who depend on upfront transparency as to how brokers will be paid,” and that it would restrict speech, among other alleged issues.
“DOJ’s supplemental response addresses none of these points,” MLS PIN writes. “DOJ’s lackluster effort should be rejected here in the face of overwhelming authority supporting the legitimacy of the settlement it attacks.”
Additionally, MLS PIN noted that while its MLS still allows for offers of compensation from sellers to buyer brokers, since lowering the minimum amount they are allowed to offer to $0 in July 2024, “approximately three quarters of sellers have elected to offer no compensation on the MLS PIN platform.”
“DOJ is simply wrong when it suggests that some irresistible force will result in only a small number of sellers offering no compensation even when they wish to do so,” MLS PIN adds.
The Nosalek plaintiffs make similar arguments in their reply brief and cite the same statistic about sellers not offering compensation in the MLS since the rule was changed. Additionally, the plaintiffs address what they feel is the DOJ’s attempt to rebuild the structure of the residential real estate market via a private lawsuit.
“There are limits on what a private class action can properly accomplish under the auspices of Rule 23,” the reply states. “Plaintiffs take no position on whether, as a matter of public policy, cooperative compensation should be completely banned. But the present litigation is a private class action on behalf of a class of sellers in the MLS PIN service area. In a competitive residential real estate market, it may be in seller’s best interests to offer cooperative compensation to generate interest in their property. Accordingly, the Department’s sweeping change must be accomplished through legislation, public rulemaking, or a Department enforcement action, rather than in the context of a private Rule 23 class action on behalf of a seller class.”
The plaintiffs also address the financial terms of the settlement, which the DOJ took issue with in its latest filing. According to an analysis conducted by the plaintiffs’ counsel, if MLS PIN opted into the National Association of Realtors’ (NAR) commission lawsuit settlement agreement, it would have paid $3.95 million, the same as it has proposed to pay in this settlement.
“Notably, the Department raised no concern before Judge [Stephen] Bough about the size of the NAR settlement fund,” the plaintiffs write.
The brief also notes that the settlement funds will be distributed based on the sale price of properties, and that the court will decide whether or not to grant the attorneys’ fee request, which the DOJ had also taken issue with.
A preliminary approval hearing for the settlement is set for Tuesday, April 1. If Judge Saris grants preliminary approval next week, this will be the second time the settlement has achieved this status, the first time being in September of 2023.
