Coming up on a year from the implementation of new policies required by the National Association of Realtors®’ (NAR) settlement, plaintiffs are pushing forward with more specific enforcement oversight, as a court filing late last week revealed that at least 25 Realtor® associations and MLSs have received demands to prove they are complying with the new rules.
In a letter dated in April but filed last Thursday, the lawyers behind the Burnett case wrote they were providing an update to the court around “ongoing efforts to enforce practice changes,” currently in the process of “diligently reviewing” documentation submitted by MLSs and associations.
“Counsel will, if necessary, bring instances of noncompliance to the Court’s attention,” the plaintiffs wrote.
The letter is the first official acknowledgment of what plaintiffs attorneys have said publicly since last March—that they are closely watching parties covered under the settlement.
RISMedia reached out to four of the entities who received the letters regarding their usage of these agreements or if they received any other details on why this request was made. A spokesperson for Bright did not address the specific questions, but confirmed that the MLS had “responded” to the request, and was “committed to the spirit as well as the letter of the NAR settlement.”
“By removing compensation fields, deploying industry-leading language-detection technology, enhancing compliance training and requiring heightened buyer-broker disclosures, Bright has positioned itself as a benchmark for MLS governance in the post-settlement landscape,” the spokesperson said.
An attorney for the Burnett plaintiffs did not respond to a request for comment at press time.
While questions about specific enforcement or monitoring for settlement changes are still not entirely clear, the final mechanism for ensuring new policies are being followed is legal action. Judge Stephen R. Bough of the Western District of Missouri explicitly reserved jurisdiction over the settlement when he approved the deal back in November—at NAR’s request, as the Department of Justice (DOJ) indicated it might bring enforcement action contradicting the new policies.
The 25 entities who received letters are mostly larger organizations, with a few token smaller associations and MLSs. Plaintiffs also said they are planning to send more letters to other organizations “in the coming months,” adding they also recently attended a “legal seminar” hosted by the Council of Multiple Listing Services (CMLS) “engaging with MLS leaders and their counsel to discuss settlement requirements and compliance.”
A CMLS spokesperson told RISMedia via email that “CMLS sought to hear from co-lead Plaintiffs’ counsel for perspective on the settlement.”
“Compliance with the settlement is a pertinent topic for MLSs,” the spokesperson said. “Our job is to support MLSs, and we wanted to bring this perspective and engage in conversation about transparency and serving the market. We are proud of the work our members have already done and how quickly they’ve responded to the changing needs of the marketplace.”
The plaintiff attorneys also provided copies of the letters they sent to the MLSs and associations, providing at least some insight into what they are scrutinizing.
While much of the requests were broad and straightforward—asking for proof that compensation fields were removed, listing agreements shared with members and “(a)ll other documents concerning or reflecting how (the organization) has been enforcing compliance with the NAR Settlement,” the plaintiffs also appear to be scrutinizing so-called “touring agreements” as well as educational materials and guidance.
One of the document requests sent to both MLS and associations is for “documents relating to (the organization’s) positions on the use of ‘Touring Agreements,’ ‘Showing Agreements’ or similar agreements between buyers and brokers.”
The letter does not define what these agreements are, but several companies, including Zillow and eXp, have touted short, limited buyer contracts utilizing this nomenclature, usually for short time periods or individual properties. Buyer contracts became a sticking point at the final approval hearing for the NAR settlement, with a lawyer for the DOJ saying that federal law enforcement were concerned about the antitrust issues raised by mandatory contracts.
Rules—and laws—around buyer agreements also vary significantly from different jurisdictions, with at least one state banning the requirement that buyers sign an agreement before touring a home.
Here are all the MLSs and associations that received letters from the plaintiffs:
- Stellar MLS
- San Diego MLS
- OneKey MLS
- Charlottesville Area Association of Realtors®
- Imagine MLS
- Canopy MLS
- Northstar MLS
- California Regional MLS
- Bright MLS
- Heartland MLS
- Florida Gulf Coast MLS
- Long Island Board of Realtors®
- Georgia Association of Realtors®
- NC Realtors®
- Texas Realtors®
- Pennsylvania Association of Realtors®
- New Jersey Realtors®
- Florida Realtors®
- Minnesota Realtors®
- California Association of Realtors®
- Colorado Association of Realtors®
- Idaho Realtors®
- New Mexico Association of Realtors®
- Oregon Realtors®
- Rhode Island Association of Realtors®
Editor’s note: this story was updated at 3:31 p.m. eastern time with comments from a CMLS spokesperson.