National Association of Realtors offices in Washington, D.C. March 13, 2019.
Antitrust enforcement has recently surged in hot-button areas like big tech and labor, and we can now add housing to the mix. In the past two years, the private bar has brought at least eight lawsuits challenging various practices by multiple listing services (MLSs) in the residential real estate brokerage industry. The Department of Justice (DOJ) has also increased its investigation of such practices. These enforcement actions apply both traditional and novel antitrust concepts to one of the most important financial transactions people make in their lives.
Most homes for sale in the United States are listed on an MLS, a database used by real estate brokers to share information about the homes and facilitate purchases thereof. MLSs are owned and operated by regional associations of real estate brokers, and these regional associations are overseen by the National Association of Realtors (NAR). The regional associations require member-brokers to adopt the NAR’s rules in exchange for accessing their MLSs. At least three of these rules—commission sharing, “clear cooperation policies” and Internet data exchange rules—are being challenged in federal courts today because they allegedly distort home prices and deprive home buyers and sellers of non-MLS alternatives.
Commission Sharing
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