In recent years, home sellers around the country have filed lawsuits against regional multiple listing services and affiliated realtors, generally alleging that by requiring sellers to agree to a single, set offer of compensation to any broker who found a buyer for their home in order to have their listing included (the “Buyer-Broker Commission Rule”), the realtors violated various antitrust laws.
After the Trump DOJ entered into a settlement of related a antitrust investigation against the National Association of Realtors, the Biden administration withdrew consent to that settlement–and the DC Circuit held oral argument on the lawfulness of that withdrawal in December.
In the meantime, some cases have gone to trial, and a motion to consolidate others is pending before the Judicial Panel on Multidistrict Litigation. In one still pending class action in Massachusetts, the parties have entered into a settlement and sought the district court’s approval. Yesterday, DOJ filed a statement of interest arguing that the court should not approve the settlement, asserting, among other things, that the changes to the buyer-broker commission rule would leave it anticompetitive and continue to artificially inflate housing costs, that the agreement would hamstring government enforcement, and that, certification of a settlement for a Rule 23(b)(1) and (2) class with no opt-out provision is improper.
