Brokers Over $2B in Volume Should Prepare for Mediation

Friday, March 15th, 2024 was a watershed day for the real estate industry in the United States. The National Association of REALTORS® (NAR), who had been negotiating with the plaintiffs in the Sitzer/Burnet Antitrust litigation, announced a proposed settlement that covers the entire real estate industry (including all Realtors, Realtor associations, and Realtor-owned MLSs, all Realtor affiliated brokerages) except for brokerage firms who perform more than $2 billion in transaction volume.

The NAR settlement comes on the heels of other settlements, including RE/MAX, Anywhere, and Keller Williams. There are about 94 brokerage firms that transact over $2B per year. In the Sitzer settlement, NAR negotiated a buyout for these large firms at a rate of about $2.5 million per $1 billion in trades. Using this math, Compass would have been subject to $2.25 million multiplied-by 228, since they did $228 billion in transactions. However, Compass was able to negotiate $57.5 million. Compass is making two payments. Compass negotiated their settlement in the Gibson and Umpa cases, which covers all plaintiffs in each of the copycat lawsuits – including those in Sitzer.

Let's unpack this.

Any firm in the $2B club that has been named in any of the copycat lawsuits may go to the plaintiff's attorney and settle. The settlement in any of the cases covers all cases – including Sitzer. Firms would not be required to pay more than once.

The attorneys in the copycat lawsuits have a heightened motivation for settling with any of the brokers in the $2B club. If firms do not settle in any of the copycat cases, the judge will tell the plaintiffs to go collect their check from Sitzer. Those lawyers may not participate in the settlement at all, unless they can cajole brokers in the $2B club to settle with them.

The settlement terms may be different. As you know, there are a number of terms that eliminate the offer of compensation from the MLS entirely, among other things. NAR makes payments over four years. Compass makes payments over two years. Compass has different settlement terms.

If you are in the $2B club and you have not been named in any litigation, your best bet might be to contact the mediator in Sitzer and negotiate a settlement. You have some time to prepare, but not much. The mediation in Sitzer does not start until the court accepts the settlement.

What should you do now?

Prepare for mediation. Get your attorneys on it. Pay close attention to the settlements that have already been announced, and do some 5th grade math. How much did they agree to pay per agent, or per seller transaction? Is your business model different? How much can you pay? These data points are all helpful in negotiation.

WAV Group is not offering legal advice. We help with information and strategic planning.

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