Defendant MLS PIN and plaintiffs Jennifer Nosalek, Randy Hirschorn and Tracey Hirschorn asked the district court judge for permission to respond to a statement of interest filed by the Department of Justice in the case.
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In a major Antitrust Commission lawsuit, plaintiffs and Multiple Listing Service defendants are joining forces to fight a common enemy: the U.S. Department of Justice.
On Wednesday, plaintiffs Jennifer Nosalek, Randy Hirschorn and Tracey Hirschorn and defendant MLS Property Information Network (MLS PIN) asked the U.S. District Court for the District of Massachusetts for permission to respond to a statement of interest filed by the Justice Department on February 2 in the case. 15.
In the filing, the federal agency rejected the rule changes in the proposed settlement between the plaintiffs and MLS PIN, instead calling for “an injunction prohibiting sellers from offering commissions to buyer’s brokers,” thereby promoting competition and innovation among buyers. Broker, as buyers will have the right to negotiate directly with their own broker.
While the plaintiffs and MLS PIN previously reconsidered and realigned the settlement after the U.S. Department of Justice expressed concerns about the deal, they appear to have decided to fight after hearing specific objections from the antitrust enforcement agency.
“Plaintiffs and MLS PIN dispute the factual and legal arguments raised in the Department of Justice’s Statement of Interests,” attorneys for both parties said in a statement. Joint court filing.
“Accordingly, Plaintiffs and MLS PIN respectfully request the opportunity to respond individually to the Department of Justice’s Statement of Interest by March 28, 2024.”
March 28 is the date for oral arguments before the Multidistrict Litigation (MDL) panel. On December 27, attorneys for plaintiffs in other similar lawsuits including Gibson and Umpa asked the U.S. Judicial Panel on Multidistrict Litigation to consolidate all cases with similar claims nationwide, including the Nosalek case, into U.S. District Court for trial . Western District of Missouri. The court was the first to hear a similar case called Sitzer | The Burnett case resulted in a multi-billion-dollar verdict against the home seller and plaintiff.
Judge Patti B. Saris, the judge in the Nosalek case, suspended the case on Feb. 14 pending the MDL panel’s ruling, but tentatively reopened the case the next day to allow the Justice Department to Submit a declaration of their interest.
“Plaintiffs and MLS PIN anticipate that the MDL Panel will not issue a decision on or before that date (March 28) and understand that the stay of this action, including the settlement with MLS PIN and all proceedings related thereto, will remain in effect . The decision remains open for at least several more weeks before the MDL panel does so, the joint court filing said.
“However, plaintiffs and MLS PIN propose to file responses by March 28 so that once the MDL panel rules and if the court’s stay is lifted thereafter, the Department of Justice, the parties, and this court will be able to proceed as quickly as possible.”
Just as the Federal Commission Suits Moehrl and Sitzer | Burnett and Nosalek seek a class-action lawsuit, claiming that sharing commissions between listing brokers and buyer’s brokers drives up sellers’ costs, is a conspiracy to restrain trade, and violates the X.C. Mann Antitrust Law.
However, the Nosalek lawsuit differs from many others in one important way: The National Association of Realtors is not named as a defendant, while MLS PIN is. MLS has 60 full-time employees and approximately 46,000 subscribers in six New England states and New York.
The Nosalek case joins a growing number of antitrust lawsuits across the country challenging a rule that requires listing brokers to provide buyer’s brokers with comprehensive, unilateral compensation for filing listing applications on the MLS. Most of the lawsuits target the NAR’s version of the rule, known as the Collaborative Compensation Rule or the Participation Rule, which is in effect for all real estate agent-affiliated MLSs nationwide and thus drew the attention of the DOJ.
It remains to be seen whether the plaintiffs and MLS PIN will unequivocally oppose the Justice Department’s call for commission decoupling. A week after the DOJ filing, NAR broke its silence on the agency’s proposal, saying the proposal would harm consumers by making it more costly for homebuyers to obtain competent representation and reduce access to fair housing.
Read the joint court documents:
Send an email to Andrea V. Brambila.
