The Bay Area Real Estate Information Services, Inc. (BAREIS), an independent northern California MLS, has been sued in a class action. The complaint also names Marin, North Bay, Northern Solano County and Solano Associations of REALTORS®, along with National Association of REALTORS®, though they have no interest, ownership or control of the independent MLS. The lawsuit also includes corporate defendants ― RE/MAX Holdings, Inc.; Anywhere Real Estate Inc.; Keller Williams Realty, Inc.; Compass, Inc.; and eXp World Holdings, Inc..

The action appears to make similar allegations to those made by plaintiffs in the recent Burnett v. NAR, et al. case in Missouri, relating to the practice of cooperative compensation in which listing brokers offer compensation to brokers representing buyers as part of marketing the property. The jury in that case recently returned a verdict against NAR and the corporate defendants; NAR has indicated that it will appeal.  

As always, we will monitor this case and others that impact the industry.

NAR suggested some responses to common questions members may have:

Is there anything brokers, state/local associations or MLSs need to do differently because of the Burnet verdict or this lawsuit?

This suit and others like it don’t change the many choices buyers and sellers have when deciding to buy or sell their home. They can choose to hire a real estate professional,  or to do all the work themselves. 

You should continue expressing to clients, friends, and family, that compensation arrangements (including commissions) are, and have always been, negotiable and set between a broker and their respective client. This includes compensation offered through the MLS to the buyer’s agent, if any.

You should continue to use buyer representation and listing agreements to help clients understand 1) exactly what services and value you are providing; and 2) importantly, how much you charge. 

Can listing brokers still offer cooperating compensation? 

Yes. 

Listing brokers in consultation and agreement with their seller clients decide how much compensation to offer to serve the seller’s best interest, and it can be $0, a penny, or any other amount. NAR rules do not specify an amount. This is solely a matter that’s negotiated between brokers and their clients. 

What can REALTORS® tell their clients about this suit? 

Compensation will continue to be negotiated between a broker and their respective client, as it always has been.

REALTORS® will still and always be there for clients to guide them through the financial, legal and other complexities of buying and selling a home.