DOJ: Offers of agent compensation ’should not be made anywhere’

At a status hearing on Tuesday for the Nosalek commission lawsuit, a lawyer for the Department of Justice said the terms of the National Association of Realtors’ nationwide commission lawsuit settlement agreement represented “an improvement.” However, it remains unknown if the DOJ will file a statement of interest in the Sitzer/Burnett suit, as it did in the Nosalek suit, according to RisMedia, which first reported the news.

During her remarks, Jessica Leal, an attorney for the DOJ, noted that the DOJ believes “offers of compensation should not be made anywhere, but certainly not on the MLS.” Leal also noted that the DOJ was not currently supporting or opposing NAR’s settlement agreement. 

Although Leal highlighted the DOJ’s belief that offers of compensation should not be anywhere, she did not explicitly say what specific changes the DOJ might look to pursue beyond those outlined in the terms of NAR’s settlement agreement. Additionally, she said the DOJ would make a decision about whether or not to file a statement of interest in the Sitzer/Burnett suit sometime around October.

“The schedule for that is still far out so we’re still analyzing,” Leal said. 

Leal also discussed the third amended settlement agreement reached by the Nosalek plaintiffs and defendant MLS Property Information Network (MLS PIN). The DOJ has again decided to reject the agreement, which unlike NAR’s settlement agreement, allows offers of compensation on the MLS and allows for commission negotiations using the MLS. 

While Leal noted the amended agreement did not address all of the DOJ’s concerns, she said the government agency has not “finished understanding the third settlement.” 

The DOJ became involved in the Nosalek suit, which was filed in 2020 by homeseller plaintiffs in the Boston area, in October of 2023, when it filed a statement saying that it had “significant concerns” about the settlement reached between the plaintiffs and MLS PIN in June 2023. In February 2024, the DOJ filed a statement of interest in the suit in which it called for a complete ban on cooperative compensation, leading many to believe that it will in fact look to intervene in the NAR’s settlement agreement. 

At Leal’s request, Judge Patti Saris, who is overseeing the Nosalek suit, set the next hearing date for June 21, a week after the deadline for non-Realtor association affiliated MLSs to opt-in to NAR’s settlement. Additionally, MLS PIN and the plaintiffs have until Friday to file their official responses to the DOJ, in which the parties said they will seek to address the big-picture concerns the DOJ has expressed about their settlement agreement.