Nosalek Plaintiffs Seek Preliminary Approval Of Mls Pin Settlement

The National Association of Realtors’ (NAR) commission lawsuit settlement agreement — as well as settlements reached by RE/MAX, Keller Williams, Anywhere, Compass, Redfin, At World Properties and many others — may have received final approval, but the first commission lawsuit settlement to be reached has not been so fortunate.

Initially announced in the summer of 2023, the settlement is between the Nosalek plaintiffs and defendant MLS Property Information Network (MLS PIN). The other defendants in the suit — Anywhere, RE/MAX, Keller Williams and HomeServices if America — have each received final approval of their commission lawsuit settlements.

In its original settlement, MLS PIN agreed to pay $3 million into a settlement fund, as well as business practice changes that include an end to the requirement for mandatory offers of buyer broker compensation in order to list a property on the MLS.

Despite Judge Patti B. Saris’ initial misgivings over the settlement, she granted preliminary approval in September 2023. But shortly after that, things derailed.

Later that month, the Department of Justice (DOJ) filed an amicus brief claiming that 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.

After nearly 16 months of back and forth, which included the DOJ filing a statement of interest in which it called for the end to cooperative compensation, the Nosalek plaintiffs appear to have had enough. On Friday, counsel for the plaintiffs filed a memorandum of law in support of the plaintiffs’ motion to preliminary approve their settlement agreement.

According to the filing, the DOJ has repeatedly rejected all amendments to the settlement. As a result, the plaintiffs are asking the court to grant preliminary approval to their third amended settlement agreement.

“The Department has suggested that it has concerns regarding the terms of the settlement in this case,” the filing states. “But it has consistently declined to provide Plaintiffs with an explanation of the specific changes it would like made to the Settlement Agreement. Such general concerns as the Department does express in its Statement are misplaced, if not already fully resolved.”

While the plaintiffs acknowledge that the terms of their settlement are different than the terms of NAR’s settlement, they believe their settlement terms are “fair and adequate.”

On Dec. 2, following Judge Stephen Bough’s final approval of NAR’s settlement, the Nosalek plaintiffs said they contacted the DOJ to see if the department “would provide Plaintiffs with specific changes to the MLS PIN Settlement Agreement that would resolve the Department’s concerns.”

According to the filing, the DOJ and counsel for the plaintiffs met twice in December to discuss the settlement.

“During the first conference, Plaintiffs again inquired about any specific amendments to the MLS PIN Settlement Agreement that the Department would like to propose, and also specifically asked the Department whether the Department would withdraw its objections if the MLS PIN Settlement Agreement were amended to mirror the NAR settlement. During the second conference, the Department advised that it would not propose any specific changes to Plaintiffs,” the filing states.

The plaintiffs argue that given the length of time their settlement has been pending (more than 18 months), as well as final approvals given to the settlements in the Sitzer/Burnett and Gibson/Umpa, the MLS PIN case should be granted preliminary approval.

“Plaintiffs respectfully submit that the practice changes embodied in the MLS PIN settlement benefit home sellers in Massachusetts as discussed above. Moreover, Plaintiffs believe those practice changes are at least as, if not arguably more, beneficial than those in the NAR settlement,” the filing states.

The MLS PIN settlement eliminated “all of the anticompetitive restraints alleged in the Complaint by requiring MLS PIN” to remove compulsory offers of buyer broker compensation in order to list on the MLS; ensures that sellers know they are not required to offer compensation to a buyer broker; and clarifies that the buyer does not have to accept an initial offer of buyer broker compensation offered by the seller.

The plaintiffs also point out that buyer representation agreements, which are mandated by NAR’s settlement and a known issue with the DOJ, are not part of its settlement.

It remains to be seen if Saris will grant preliminary approval to this settlement as she has once before.