Judge Patti B. Saris, presiding over the Nosalek v. MLS PIN lawsuit in Boston, said on January 27 that she is ready to move forward with the case, scheduling a preliminary hearing for April 4.
Saris expressed her frustrations with the Department of Justice (DOJ), as the settlement has been pending since the summer of 2023. In September of that year she granted preliminary approval over the settlement, but the DOJ filed an amicus brief over concerns it had with the proposed settlement agreement.
“This is the slowest moving situation,” said Saris. “For me, a primary point of comparison will be the (Kansas City) settlement. I don’t have strong views on the differences as to what is better, but that’s something we can iron out in the preliminary hearing.”
Serving in the DOJ’s antitrust division, Chris Bower, who was part of the department under former President Joe Biden’s administration, said that the DOJ is still carefully considering the plaintiffs’ renewed motion from January 17.
“We filed our statement of interest in February of 2024 of, I believe, the second settlement agreement. Then there were filings by MLS PIN and other parties subsequent to that,” said Bower. “Then the third settlement agreement and the plaintiffs filed a renewed motion on January 17, making various points. So we’re carefully considering those points. We were operating under the 90-day framework.”
Bower notably was not the lawyer who previously represented the DOJ in the case, though he previously appeared in person at the NAR settlement final approval hearing in Missouri, where he said the DOJ had “concerns” over that deal—something he reiterated to Saris.
“We had concerns, we didn’t take a position as to the Rule 23 question,” Bower said, seemingly referring to the federal rule requiring that judges ensure a class-action settlement is “fair, reasonable and adequate.”
Saris also pointed to the fact that there is a new presidential administration in Washington, when discussing whether the DOJ would be able to expedite their responses to the latest filings.
“There is something happening in Washington, you may have read about it, I don’t know whether they would be able to—I want to be respectful to whatever is going on in the DOJ,” she said.
While exactly how the new Trump administration might affect the DOJ’s interventions in various real estate-related cases, it appears that the process of turning over personnel and shifting priorities is still in progress. Reuters reported that 20 senior DOJ lawyers were reassigned in the last week, after Trump assumed office.
Hoping to wrap up the lawsuit over the summer, the judge added that she is not likely to give any more extensions since she has already done so at the DOJ’s request.
“I don’t want to wait 90 days and then another 90 days. This is so old at this point,” she added. “I don’t want another status report. I don’t want another round-robin.”
Saris also said she would be using the NAR settlement as “at least one benchmark” when deciding whether to approve that settlement. She also questioned other attorneys about the difference in monetary relief between the MLS PIN settlement and the NAR deal, with at least one lawyer claiming he didn’t recall the exact amount NAR paid.
Saris said she would likely want the attorneys representing MLS PIN and the plaintiffs to brief her on the “significant difference” in monetary relief and practice changes between the two settlements. Notably, the MLS PIN deal does not remove offers of compensation from the MLS.
The class-action lawsuit was first filed against MLS PIN, the largest MLS in New England, in December of 2020. Alleging anti-competitive practices, the plaintiffs argued that MLS PIN’s mandatory commission structure inflates costs for homebuyers and sellers.
At the April 4 preliminary hearing, Saris will decide to approve the settlement, and potentially set a date for final approval hearing.
