I started Notorious R.O.B. back in January of 2008. Back then, WordPress was more or less the state of the art in technology and I was extremely excited to venture into the world of blogging — something I had actually been doing for a while in political and comics/gaming space before 2008.

After over 15 years, over 1,500 posts, thousands and thousands of comments, thousands of readers over the years (and all of them among the most informed, most curious, and best audience in real estate), various new efforts launched then abandoned, I think it’s time I try a newer content platform that seems more in line with how people consume content in 2023.

So I am moving Notorious R.O.B. to Substack, the newsletter platform.

Much of the reason is that I’m tired of the work that has to go into maintaining a WordPress blog of this size and age. I have dozens of plugins, multiple pages, feeds for YouTube, plugin for handling webp images, sidebars, topbars, navs, designs, templates… and what was once super easy and simple compared to the CMS available back in the day (anybody remember Microsoft FrontPage? Adobe Dreamweaver?) has become cumbersome and annoying.

I don’t write as often as I’d like as it is; I don’t have time to mess around with updating databases and messing with proxy caches and such.

My hope is that Substack might be less flexible, but it should be easier to just write posts long and short (gasp!) that might be of interest to people other than myself. It seems to have most of the features and tools I need and want, including robust commenting, easy to use writing interface, etc. Plus, the direct-to-inbox email delivery with an actual website for posts seems like a better method of letting my readers know I’ve written something.

So anyhow, I have moved things over to Substack for now. This blog won’t go away. I’ll probably strip out a lot of the extraneous stuff and keep it as a sort of backup plus archives of 15 years of writing. But new posts from today on will be on Substack.

The new home of Notorious is: https://notoriousrob.substack.com/

Please come visit me there from time to time if you’re a casual reader.

If you are currently a VIP subscriber, you should have been moved over already with all of your subscriptions intact. (Plus a free month!) If you are receiving new posts via email, you should have been moved over already. Please let me know if you’re running into any issues; the importer tool is pretty good, but it’s far from perfect.

Also, if you’d like to be alerted when I write something new, please subscribe to the newsletter at the free tier here:

I look forward to continuing our conversations over on Substack.

Thanks everybody, each and every one of you, for having made Notorious R.O.B. a part of your lives for over 15 years. Now, make the new direct-to-your-inbox Notorious R.O.B. a part of your lives as we confront the Most Interest Times in real estate in a generation.

-rsh

In my post about the likely impact of the commission lawsuits against NAR and four corporations, I mentioned that I had a conflict of interest when it came to the issue of real estate auctions because I had been working on an auction-related initiative for a while. I had kept the initiative relatively quiet because it’s early stages, but the court kind of forced my hand. Fairness dictates that I give you all at least an idea of what I’ve been doing so you can evaluate my opinions on Notorious ROB appropriately.

Let me tell you about Decentre Property Exchange. I’ll try very hard not to make this a total sales pitch and shameless plug, but… I make no guarantees on that front. DPX has been my passion for over a year now.

Decentre Property Exchange

Fundamentally, Decentre Property Exchange (“DPX” for short) is an online marketplace for real estate.

Anytime you buy or sell something, there are three processes that have to happen:

• Execution: the buyer agrees to buy and the seller agrees to sell.
• Clearing: all of the steps necessary for settlement, such as negotiation or proof of quality.
• Settlement: actual exchange of money or something else of value for what was purchased.

For real estate, the Execution step is when a Sales Contract is signed — that’s when a seller agrees to sell and the buyer agrees to buy the property. The Clearing step is the contract-to-close phase when numerous details are verified, negotiations happen, and everything is made ready for the Closing. The Closing, when wire transfers happen, documents and signed, and keys handed over is the Settlement step.

In our view, a marketplace must at the very least match the buyer and the seller. DPX matches buyer to seller using the ideal method for non-commoditized unique items: transparent open auction.

This post would get far too long, far too academic, and far too detailed if I get into why open auctions are the ideal way. There will be future posts either here on Notorious, or on the Decentre blog dealing with that topic. For now, let me say that we truly believe that open auctions deliver transparency, highest price for a property, efficiency, faster transactions, and most importantly, a better consumer experience.

What Makes DPX Unique?

It isn’t as if real estate auctions have not been tried before. They’ve all run into major challenges, and the remaining few have pivoted to be more of an offer management platform rather than an actual auction site.

The obvious question here is why DPX would succeed when numerous others have not. I don’t know for a fact that we will succeed because we’re a new startup; but we have designed some unique features into DPX to set it up for success.

DPX is an MLS

The first and most important differentiator is that DPX is a Multiple Listing Service.

It turns out that you cannot build an open auction platform on top of the traditional MLS. There are simply far too many rules and policies that make auctions difficult, if not impossible, to conduct. Many an MLS, for example, simply do not even allow auctions to be listed. Others have various hoops to jump through.

Fundamentally, the MLS is built on the current offer-and-acceptance system. Its rules and policies and systems are built to support that process, not an open auction process. Plus, there are hundreds of MLSs all with their own rules and policies, some of which conflict with each other, and it is an administrative nightmare for a tech company to try to comply with all of them.

Our solution is not to build on top of existing MLSs, but to build a new kind of MLS that is less of an alternative to and more of a complement to existing MLSs.

No Commissions, but Compensation Guaranteed via Buyer Premium

The second biggest differentiator is that DPX does not have the unilateral offer of compensation like the traditional MLS. In fact, we do not have commissions at all. Any seller executing the transaction on DPX pays 0% in commissions at closing.

And yet, we guarantee compensation to the agents involved in the transaction. How do we work such magic?

As an auction platform, we charge a Buyer Premium to the winning bidder… like every other auction platform in existence today. Take a look, for example, at Concierge Auctions or Bring A Trailer. DPX charges a Buyer Premium that is equal to the prevailing commission rate in the market; nationwide, that is about 5%.

DPX charges the winning buyer the Buyer Premium, which is added to the winning bid price to make the final sale price in the contract. The buyer can finance that full amount so it isn’t as if they have to come out of pocket with extra cash. (Read the Fannie Mae Conforming and High Balance Program Guidelines for more.)

We split the Buyer Premium between the listing broker/agent and the buyer broker/agent, thereby guaranteeing compensation. There is no unilateral offer of compensation, no wrangling over how much is or is not offered, and no sweat, no fuss, no muss. We pay the agents involved in the transaction equally.

DPX makes money from a platform fee charged to both sides (0.25% each, which can be discounted further).

Easy to Join, Free to Use, Non-Exclusive

Because of our business model, DPX is entirely free to join, to use, to list, to bid.

There are no lengthy application forms necessary. We don’t have application fees. As a matter of fact, we don’t have concepts like “Broker Participant” because we are not about offers of cooperation and compensation. We need the brokerage to join both because the brokerage owns the listing agreement, and because under state law, we have to pay the brokerage (who then disburses payments after the split to the agent)… but there are no fees, no requirement that every agent in your brokerage must join, nothing.

This means that we do not need nor do we want you to join DPX and leave your MLS. We are a parallel platform, not a competitor to the MLS. Since we’re not charging you any dues or fees, all of our brokers and agents risk nothing by using DPX in addition to their local MLSs.

I will get into rules and compliance in a later post, but let’s just say that we have far fewer rules than the traditional MLS and yet, we do engage in data compliance. It’s a bit more complex than that, so like I said, future posts.

We do enforce all laws and regulations, of course, because those are laws. So for example, if you want to represent someone on a transaction, you must have a valid real estate license to do so. We take Fair Housing and discrimination very seriously. Fraud is illegal whether you do it on an auction platform or in the traditional MLS.

Sidebar: Buyers Won’t Pay Extra to Use an Auction…

By far the most often heard objection to DPX’s system is that buyer will not pay a 5% Buyer Premium on top of the sale price. We agree… if they are paying a Buyer Premium on top of the full commission-included sale price. On Concierge Auctions, for example, they spell it out: “Buyers pay a Premium on the high bid amount and any applicable transfer fees. Sellers pay broker commissions.”

On DPX, there is no commission paid by the seller, which means there is no overpayment. We all know that in the current system, while the seller pays the commission, the buyer is the only one bringing money to the table. The seller and the listing agent look at the net sheet, taking the commission into account. Buyer agents all know this, and many buyers also know this.

Our system simply makes transparent who is paying the commission. It is fully financeable, unlike buyer agent commissions today. There is no downside to the buyer for using DPX, and plenty of upside from the radically increased transparency.

The Relevance to Commission Lawsuits

There are, to be sure, other unique features and unique differentiators that we are bringing to the table with DPX. But as I said, we will have plenty of time and opportunity to discuss all of those either here or on the future Decentre blog.

Judge Woods’ ruling on the class action status of Moehrl raised an incredibly important point, which led me to conclude in my post about impact that auctions will become popular:

Real estate auctions are quite likely to take off, because the order from Judge Woods specifically exempts consumers who used a real estate auction to sell their homes. The rationale is simple: in an auction, the whole cooperation and compensation thing is far less of an issue. Very often, the auction seller doesn’t pay a commission, and the buyer doesn’t either; the buyer might pay a fee to the auction house, but the whole “NAR Rules and Conspiracy” thing is entirely missing. So in copycat lawsuits, other judges are likely to follow suit. Not only will auction consumers be left out of any class action, they likely don’t have much of a claim.

Going forward, if you are a brokerage that hasn’t been sued out of existence as Realogy (now Anywhere), HomeServices of America, RE/MAX and Keller Williams are about to be, you are going to want to think real hard about moving transactions to auctions just in case.

We designed DPX with an eye towards potential disruption in agent compensation models. Judge Woods understood that the issue in the trial is the unilateral offer of compensation that all brokers are required to make, and all MLSs are required to enforce. With DPX auctions, that issue does not exist. But with current crop of auction platforms, brokerages are not out of the woods (heh) yet.

Every current real estate auction platform, for example on Concierge Auctions, charges a Buyer Premium but the seller is still required to pay the commission as per her listing agreement, enforced by the local MLS. As a brokerage, you could list and sell a property through auction, but the seller can still come after you for the commission part of the transaction.

With DPX, we think brokerages are clear of this liability because there are no commissions on DPX. Every broker and agent and buyer and seller agree to our Terms of Use that if a transaction is done on DPX, they will waive all other commission claims in exchange for having DPX compensate the brokers and agents involved. Under all of the legal theories of current cases, if there is no commission, then there can be no liability.

The Buyer Premium is not set by a committee of brokerages meeting at NAR conferences. It is set by a company that decides on the cost to charge for its auction services. There is no conspiracy, no coordinated action, no agreement verbal or otherwise, between competitors.

We think that many of you reading this right now, if you are a brokerage of any size in your local market, should be investigating DPX as another tool in your belt. Because the copycat lawsuits are quite possible, and the liability is real.

Now… with regulators and lawyers… one can never be certain of what the future holds. But we are confident that what we have built is immune from the current crop of antitrust lawsuits and commission-related regulatory actions.

Buyer Agency Compensation

The mega impact of these commission lawsuits, obviously, is on buyer commissions going poof. It is hard enough to get buyer agents to talk to their clients about an Exclusive Buyer Agency Agreement; the challenge of having them tell their clients to come out of pocket if the seller doesn’t voluntarily offer enough compensation is a stark one. And that is assuming that the courts and regulators allow for sellers to pay the buyer agent at all, which is not guaranteed.

And as many agents on social media have pointed out, making buyers responsible for the buyer agent commission puts additional financial burdens on buyers at a moment in time when they are least able to come up with cash. Many have speculated that we will have to change mortgage rules to allow buyer commission to be rolled into the mortgage.

DPX solves those problems today, without any regulatory or banking reforms.

Buyer agents do not need to have any conversation with the buyer about compensation, other than, “DPX is going to pay me if you win the house through their auction platform.” If you help that client buy a house through DPX, we will pay you.

The GSE’s already allow for auction premiums to be rolled into the final sale price, which can be a conforming loan. Yes, the property has to appraise… but that’s no different than today when the property has to appraise at a higher price that includes the commission the seller has to pay.

When the dust settles, we think that we will be offering buyer agents and listing agents the security of knowing they will get paid for their hard work representing their clients, no matter what the various courts rule in the lawsuits going on right now.

Wrapping Up

This introduction comes early — far earlier than I had planned. We are still just a baby of a company, and our product is still very much in beta test with bugs and fixes and improvements we need to make. But when Judge Woods pronounced her ruling and there is such an obvious exemption to liability, and I have to discuss it… I felt ethically bound to tell you all about DPX.

Transparency, after all, is what DPX is all about. How could I not be transparent about my interests and my biases?

So, DPX is currently live in beta-testing in Phoenix, and we have some New Construction properties in Albuquerque, NM. We do plan to launch additional markets soon; Nashville and DC Metro are on deck, as are others. If you are a brokerage or an agent interested in being considered as a launch partner when we come to your market, please let us know by going to joindecentrepx.com/vip and filling out the form. We will contact you as we prepare to expand into your area.

If you are a brokerage or an agent and just have questions, as I imagine you might, feel free to reach out and contact me directly. Y’all know how.

Thank you,

-rsh

[NOTE: This is a VIP post, for subscribers only. However, given the importance of the topic, I’m going to make it open to all for a couple of weeks. Dumbass comments will be deleted since that’s one major benefit of VIP.]

As promised, I thought I would recap and summarize my thoughts on what the impact of the various lawsuits against NAR, brokerages, Zillow, and MLSs likely would be. These date back as far as March of 2019, when I wrote the first post about the first class action lawsuit, Moehrl v. NAR, which has now been certified as a class action. Over the years, I’ve written about Moehrl, Burnett, PLS v. NAR, Rex v. Zillow, and other lawsuits confronting the industry.

Things have evolved since then, of course, but on the whole, most of my thinking about the impact remains more or less the same. I’m going to limit my thinking to the two big commission lawsuits: Burnett and Moehrl. The others are important as well, but less impactful and dramatic than these two.

What is honestly puzzling is why the industry and its leadership has seemingly been on vacation for the last four years while all of these issues were developing. With the idea that it isn’t too late, let me lay out as briefly as possible what comes next. I will structure this in terms of Most Likely to Least Likely outcomes.

Most Likely Outcomes

The most likely outcomes from these various lawsuits and related developments are as follows:

• Extended period of chaos
• Increased legal costs for everybody in real estate
• Increased (and new) regulations for real estate
• No real changes for agents on the ground

Fundamentally, I believe NAR and the Corporate Defendants will lose at trial on all of the cases known today. You can go back and re-read all of my posts on legal topics for my reasoning, but at base, I believe that the elite opinion in the U.S. and the policymakers who follow it have turned against the fundamental structure of how the real estate industry works. Most important of those is the fact that transaction costs in the U.S. are far higher than in other developed nations, which leads our Elites to want to reduce those.

But losing at trial does not mean the end. As I have written and spoken about repeatedly, whoever wins at trial, the decision will be appealed by the loser. There is simply too much money at stake and too much how-business-is-done at risk for anything other than an appeal. And whoever loses on appeal will appeal again to the highest court in the land. So this fight will not end for years. I have long estimated seven years from the start, but COVID intervened, which means we likely have some five or six years from today for resolution through the courts.

That gives us the extended period of chaos. Despite results from the trial courts, NAR and the MLSs are unlikely to immediately give in and change course. They will get a stay on enforcement against cooperation and compensation, get a stay on paying damages, and pursue appeals. Brokers and agents will be left in a bit of a limbo, doing what they’ve always done but with an eye towards a massive change right around the corner.

At the same time, copycat lawsuits are all but inevitable. I wrote at length about that here. The Moehrl lawsuit names twenty MLSs as “Covered MLSs” and any result from the trial will be limited to those markets. Which means there is a giant hole outside of those twenty that lawyers will rush to fill if not today then after the verdict in Moehrl and Burnett:

Step two would be to look for states and areas not named in the Moehrl list. California really stands out. Almost the entire Northeast is absent from the Moehrl list, so look at NY/NJ/CT. Look at New England. Metropolitan areas not named above — think Chicago, Atlanta, Miami — look like fertile ground for plowing. (If suing in states/areas that Moehrl does not cover, the lawyers might be able to sue the same defendants, since people in those markets would not be covered by the Moehrl ruling. It is also possible that the court would just throw it out as a copycat lawsuit and tell the lawyers to wait for a decision from Moehrl before wasting the court’s time, or just expand the Moehrl lawsuit with additional plaintiffs in additional areas.)

Which means that every local REALTOR Association and every local/regional MLS has to up their legal budgets for 2024. And anyone who has served on a REALTOR Association or MLS Board of Directors since 2015 should free up his or her calendar for depositions and save all of his or her correspondences from 2015 on.

I cannot stress this enough: if you are a small local MLS or a small REALTOR Association, seriously consider joining forces with other small organizations or merging into a larger one. You will need to hire lawyers, and NAR’s legal budget will be stretched thin with its own problems.

The other likely outcome is regulation, particularly by the FTC but could also come from state regulators. I think new regulations are entirely likely, and possibly increased regulation on agent and broker duties as well. That the DOJ and the FTC would like to eliminate the power of NAR over commissions is hardly a secret. That they’ve been wanting to do so since the 1940s is public fact. With trial court decisions providing backup for the idea that the MLS violates antitrust law, and issuing injunctions against cooperation and compensation, the FTC is really freed up to impose new regulations.

Now… because of the extended chaos, there won’t be real changes on the ground for agents and brokers… yet. There will be an increase in brokers and agents doing things like Exclusive Buyer Agency agreements, but that should be happening today anyhow. More and more consumers will start to realize that they have to pay their buyer agents — and in fact, that they’re the ones paying their buyer agents already since they are the only ones bringing any money to the closing table. But over the next couple of years, I don’t see a huge disruption in how agents get paid, absent new regulations from the FTC or others.

Less Likely Outcomes

Less likely yet entirely possible outcomes from what transpired these past four years are as follows:

• Real consolidation of MLSs
• Divorce from the REALTOR Association
• Auctions take off
• Elimination of independent contractor agents

The initial step of joining forces to fight copycat lawsuits should evolve into actual real consolidation of MLSs. I say “should” because that should have been happening the last ten years, but hasn’t for a variety of reasons. So I’m not entirely certain that this crisis will change things.

Perhaps instead of voluntary consolidation, we’ll see involuntary consolidation: that’s where a local MLS and REALTOR Association goes bankrupt from legal fees and judgments, and all of their agents join a nearby well-funded MLS. Either way, I think we see rapid decline in the number of MLSs from roughly 550 today to perhaps closer to 10 in three to five years. I don’t think the MLSs who survive will be MLSs as we know them today; I think they will be private companies with significantly more funding. Think CoStar or Zillow or something like that. Because the war chest required to deal with all of the copycat litigation and any damages will not be small, which means even the largest of today’s MLS (CRMLS, Bright MLS, etc.) might actually be bankrupt and force agents to find someone else who is not being sued.

Given that the source of the liability for the MLS is the REALTOR Association which enforces NAR’s rules on the MLS, I think it highly possible that we see widespread divorce of the MLS from the REALTOR Association. What I don’t know at this point is the liability that broker-owned non-NAR MLSs such as Northwest MLS will face from copycat lawsuits, so it’s unclear whether divorcing the Association is any kind of protection against liability for commission compensation. Of course, this assumes that local REALTOR Associations survive somehow, because there is little doubt that they are going to get sued into oblivion.

[Disclosure: I want this analysis to be as neutral as possible, but I do have a conflict of interest. I’ve been working on a new project that is directly related to real estate auctions for the past year or so, and obviously did not see this court’s decision coming. Given events, I will put up a full post about that project later to avoid distractions on this post. I’m still offering my straight opinion, and you decide what you think of that opinion on your own.]

Real estate auctions are quite likely to take off, because the order from Judge Woods specifically exempts consumers who used a real estate auction to sell their homes. The rationale is simple: in an auction, the whole cooperation and compensation thing is far less of an issue. Very often, the auction seller doesn’t pay a commission, and the buyer doesn’t either; the buyer might pay a fee to the auction house, but the whole “NAR Rules and Conspiracy” thing is entirely missing. So in copycat lawsuits, other judges are likely to follow suit. Not only will auction consumers be left out of any class action, they likely don’t have much of a claim.

Going forward, if you are a brokerage that hasn’t been sued out of existence as Realogy (now Anywhere), HomeServices of America, RE/MAX and Keller Williams are about to be, you are going to want to think real hard about moving transactions to auctions just in case.

Speaking of brokerages, a final less-likely-yet-possible outcome is the elimination of 1099 independent contractor agents. The reason is broker liability. This lawsuit is quite likely to bankrupt four of the biggest real estate brokerages/franchises in the industry. Some of it is from their own doing: participating in NAR rulemaking, creating and promulgating training materials talking about compensation, etc. But some of it is from agents not following directives, because they’re independent contractors and you can’t tell them what to do and how to do it.

Even if regulations do not eliminate the 1099 exemption for real estate agents, quite a few brokerages might look at future liability exposure and decide they can’t take the chance of having agents who won’t follow company policy or orders from the manager. Respondeat superior (where employers are liable for actions of employees) is settled law, but at least the superior can manage the worker to do what he or she is supposed to do. If you’re going to be liable for actions of your non-employee contractors, might as well make them employees and get the power to actually manage them.

Least Likely Outcomes

The least likely outcomes, as of today, are as follows:

• NAR wins all of the lawsuits
• NAR successfully lobbies for protection
• All of the bad things come to pass, but nothing changes

It is possible, though I think highly unlikely, that NAR will simply win all of the lawsuits. Nothing in the trial record so far, nothing in the courts’ decisions on motions, and nothing about the plaintiffs lawyers makes me think that NAR will win… but you never know. As the saying goes, “That’s why you play on Sunday.” Plus, I believe all of the major cases are jury trials, and juries are unpredictable. So NAR could win every case.

Another possibility is that NAR leverages its lobbying prowess and successfully gets Congress to pass legislation protecting NAR and the MLSs and various brokerages from liability. I think this is highly unlikely for a three main reasons. One, the Federal Government does not like NAR right now. It is, in fact, in the middles of a lawsuit with NAR. Congress is different from DOJ and FTC and the Executive Branch, but… I dislike NAR’s chances given the past couple of years. Two, we in the industry recognize NAR as important and powerful… but NAR is not the NFL or the MLB. It is not “organized labor” under the Clayton Act. Third, the primary way to get an antitrust exemption is to become a “regulated industry” such as banking or transportation; would NAR want real estate to become a regulated industry under HUD? Doesn’t that kind of defeat the whole purpose of fighting DOJ and FTC and all that?

Finally, I can’t overlook the fact that maybe NAR loses all of the cases, the FTC promulgates regulations, etc. etc. and all of the bad things come to pass… but nothing changes. It seems really quite unlikely, but who knows? Maybe sellers just voluntarily start paying buyer agents because they want the buyer agents to bring them buyers. Maybe buyers just pay their own agents a commission because they value what the agents do for them. Maybe the MLS doesn’t do cooperation and compensation, but brokers and agents still think of it as a necessary utility and nothing changes.

Unlikely… highly unlikely… but hey, it’s possible.

What YOU Should Be Doing

Let me end with what you should be doing today, as a result of this latest ruling and more generally, as a result of you waking up to this problem. Consider this free consulting that is worth exactly what you paid for it. Also, I am not your lawyer; make sure you speak to your actual attorney about everything.

First, let me address NAR’s leadership. I heard from some of you (most informed readership in real estate) who are in leadership positions in local Associations and local MLSs. The word is that the communication from NAR has been the standard cheerleading we’ve been hearing for four years — you know, the “we’re disappointed in the court’s decision, this is merely a procedural setback, but we’re right on the facts, right on the law, and we will ultimately prevail, blah blah blah, rah rah GOOOOO TEAM!”

Look, that’s completely understandable in terms of communication with the general membership. You don’t want the average REALTOR to panic and get distracted from their day to day struggle, which is hard enough. You don’t want the membership to start freaking out that “OMFG! SKY IS FALLING!” However, you do need the leadership of the local Associations and MLSs to wake the hell up.

It is entirely incomprehensible to me why NAR has not called a special meeting, a special webinar, something that is restricted/limited to CEO’s and Board Presidents, to lay out what the real risks are, what the likelihood of success is at the trial level when the judges are completely hostile, and DOJ has its thumb on the scale; what the legal risks of copycat lawsuits are, what the leadership needs to do in terms of contingency planning, in terms of joint legal defense, in terms of preserving communications, etc. etc. Presumably the CEO and the President of the local Associations are in those positions precisely to do the kind of work you don’t want the membership to be doing.

I would extend this advice to other industry organizations like CMLS, RESO, State REALTOR Associations, Realty Alliance, and so on. There is zero downside to making sure that the leadership of companies and organizations are eyes wide open on what’s happening, what the risks are, and what options there are for the future.

Second, it goes without saying that if you are a local leader, even in the absence of national or state guidance, you need to be doing exactly that kind of thinking and planning. Look at your policies, your legal budget, your possible exposure.

Third, brokerage leaders need to do the same as local Association leaders. NAR was not the only entity sued. Four large brokerages and franchise companies were also sued. You need to be aware that you are quite likely to be sued by local/regional plaintiff’s class action lawyers in copycat lawsuits. At a minimum, you need to look at your training materials and coaching to ensure that the whole “if you don’t offer compensation, buyer agents won’t show you house” thing is nowhere to be found. That was what got the four Corporate Defendants on the hook.

Let’s leave things there. I’m sure you have questions. You know where to find me, or just post in the comments.

-rsh

Judge Andrea Wood of the US District Court for the Northern District of Illinois just granted class certification to the plaintiffs in Moehrl v. NAR, the mega lawsuit dealing with real estate commissions. This apparently sent shockwaves throughout the real estate industry, which puzzles me a bit. But then again, I’ve been following this lawsuit from the very beginning, and when the closely related Sitzer v. NAR (now Burnett v. NAR) was granted class action status, I wrote:

In a way, this was the least surprising decision as I never thought these lawsuits would be anything other than class action lawsuits, and it never occurred to me that the court would deny class status to the plaintiffs in Sitzer, in Moehrl, in Leeder, in Nosalek, or any of the other “we paid too much because of cooperation and compensation” lawsuits that might be filed.

Well, Moehrl was certified. And while much of my thoughts on this one remains the same as my thoughts about Sitzer when that lawsuit was granted class action status, there are a couple of new elements here that bear examination.

I read the memorandum opinion and order granting cert (and denying two motions by the Defendants) so you don’t have to. But that doesn’t mean I’m a practicing lawyer, an antitrust specialist, or more importantly, your lawyer. Please consult your own attorneys for actual legal opinions. What follows is for edutainment and speculation only.

The Order

Let’s start where we’ve always started these things — with the actual opinion itself.

It’s very long for a procedural ruling — 54 pages in length. But the court did have to dispose of quite a lot of arguments and issues and such.

Which it did. With an axe handle. As is often the case with legal opinions, I read for not only what was said but how it was said. I think the tone of the opinion presages much of what we can expect in the future.

The topline holding, the actual legal decisions, are as follows:

1. 1. Defendants’ attempts to exclude expert witness testimony are denied. Some of the axe handle beatings happen here.
   2. Plaintiffs motion for class action certification of the Damages Class is granted:Home sellers who paid a commission between March 6, 2015, and December 31, 2020, to a brokerage affiliated with a Corporate Defendant in connection with the sale of residential real estate listed on a Covered MLS and in a covered jurisdiction. Excluded from the class are (i) sales of residential real estate for a price below $56,500, (ii) sales of residential real estate at auction, and (iii) employees, officers, and directors of defendants, the presiding Judge in this case, and the Judge’s staff.
   3. Plaintiffs motion for class action certification of an Injunctive Relief Class is granted:Current and future owners of residential real estate in the covered jurisdictions who are presently listing or will in the future list their home for sale on a Covered MLS. Excluded from the class are (i) sales of residential real estate for a price below $56,500, (ii) sales of residential real estate at auction, and (iii) employees, officers, and directors of defendants, the presiding Judge in this case, and the Judge’s staff.

I initially misread this and thought that “current and future owners” were included in the Damages Class, which would have made this lawsuit an infinitely large damage award. But it isn’t. The current and future owners only get injunctive relief, meaning that NAR and the Covered MLSs cannot do cooperation and compensation.

It also turns out that the Plaintiffs are only seeking “overpayment” by the class of buyer commissions, instead of a full refund of buy-side commissions. Accordingly, I revise my estimate of damages down from $376 billion to about $195 billion. I guess that’s good news… except $195 billion would still bankrupt everybody involved.

On the other hand, it will be less than the Big Tobacco settlements of the late 90s, which came to $206 billion. So there’s that consolation, that real estate won’t set the record for damage awards.

General Impression

Before we dive into some specific issues worth calling out, I think it’s worth noting that the general impression I get from Judge Woods is that she has zero — and I mean zero — affinity with any of NAR’s arguments. She just ain’t feelin’ them. I got this impression from her earlier opinion dismissing the motion to dismiss, and nothing has changed since then.

For example… Judge Wood denies the defendants’ motion to exclude two expert witnesses, Dr. Einer Elhauge and Dr. Nicholas Economides. I’m not entirely sure, but it seems to me she could just have said, “These guys are experts, and they can testify at trial.” Instead, we get treated to this:

Finally, Defendants challenge Elhauge’s conclusion that buyer-broker commissions in the but-for world would be lower than those enjoyed by buyer-brokers in the present world. They claim that Elhauge makes an entirely speculative leap from the general economic principle that consumers want to pay lower prices to his conclusion that those few buyers who retained buyer- brokers would pay less in a but-for world without the Challenged Restraints. The Court disagrees.

In fact, Elhauge fully explains the reasoning underlying his conclusion. For example, he predicts that there would be decreased demand for buyer-brokers in the real world and supports his prediction by considering how technological advances have decreased the value of buyer-broker services. In particular, he notes that buyers can find homes without the assistance of a buyer-broker through websites like Zillow. Elhauge then observes how, in more competitive markets, the increasing use of the internet has reduced consumer costs, highlighting how increases in the number of consumers using the internet to book air travel and to trade stocks has been accompanied by corresponding decreases in commissions for travel agents and stockbrokers.

By contrast, buyer-broker commissions have increased in the face of technological advances. Moreover, Elhauge notes that his opinion is reinforced by NAR’s own internal studies that reveal the real estate industry’s concerns about how technological advances risk reducing demand for broker services. From there, Elhauge applies the undisputed economic principle that decreased demand results in lower prices.

Thus, far from making an unsupported extrapolation from a general economic concept, Elhauge considers numerous pieces of evidence and data, applies his knowledge of antitrust law and economics, and explains each step of his reasoning. Elhauge provides similarly fulsome explanations as to other factors that would tend to lower buyer-broker commissions in the but-for world.[Line breaks for legibility added. Emphasis added.]

I mean… maybe the court needs to cite this example in order to justify the ruling? But I felt like I was reading the Plaintiff’s brief. If Judge Wood hasn’t already made up her mind as to the outcome of the case, it’s only because her job is to officiate over a jury trial. If this were a bench trial, I think we’d have a decision already.

One amusing moment, if you can find any legal opinion amusing, came when the court was denying excluding the other witness. The Defendants had argued against Dr. Economides’ estimate of damages using other countries as comparisons. The court writes in response:

Notably, five of the seven countries identified as potential yardsticks following Economides’ initial screening were used as comparators by the NAR in an internal report discussing the increasing pressure on real estate brokers to reduce commission rates. (Pl.’s Resp. to Defs.’ Mot. to Exclude Experts, Ex. 4, D.A.N.G.E.R. Report at 22, Dkt. No. 346-5.) In particular, the internal NAR report notes that many brokers “fear . . . a realignment of fees as charged in other countries in the world,” and then cites the average commission rates in the United Kingdom, the Netherlands, Australia, Belgium, and Germany.

I’m gonna guess that neither NAR nor Stefan Swanepoel ever thought that the D.A.N.G.E.R. Report would be cited against NAR and the Defendants by a judge. But there you have it.

I can go on and on, but read the opinion for yourself if you’d like. I found the general tone of the court here to be very much favorable towards the Plaintiffs and very much against the Defendants.

On Northwest MLS

I think the most important new argument advanced and swatted down has to do with Northwest MLS. As some of you know (and frankly, all of you should know), Northwest MLS in Seattle removed the mandatory compensation requirement in late 2022. NWMLS could do this because it’s a broker-owned MLS and not required to follow NAR’s various rules and policies.

NAR and the Defendants used the example of NWMLS to argue that the various rules do not artificially inflate commission rates, and the court addresses that. This part is important, I thought, so I’ll quote the whole section.

Defendants assert that Plaintiffs’ claim that the Challenged Restraints artificially inflate buyer-broker commission rates is contradicted by the evidence from the Northwest MLS. The Northwest MLS is a non-NAR affiliated MLS (and thus not one of the Covered MLSs), that recently stopped requiring listings to include an offer of compensation to buyer-brokers. Since that rule change went into effect, 99.75% of sellers continue to offer compensation to buyer- brokers, and 95% of those offers are at rates exceeding 2%.

A similar outcome can be seen with respect to the West Penn MLS, which has not required sellers to offer compensation to buyer- brokers since 2013. Defendants claim that the data from these U.S.-based MLSs reveal the individualized nature of the inquiries concerning why a given seller offers compensation to buyer-brokers and the rates at which they do so.

While Defendants accuse Plaintiffs’ experts of ignoring evidence from the Northwest MLS and West Penn MLS, Elhauge’s rebuttal report does address Defendants’ expert’s discussion of the outcomes in those MLSs and explains why he found the evidence unpersuasive. Among other things, Elhauge notes that the Northwest MLS did not entirely drop its version of the Buyer-Broker Commission Rule but instead modified its requirement that listings contain a non-zero offer of buyer-broker compensation to allow $0 offers. In other words, the Northwest MLS still requires sellers to make offers of compensation, it just allows them to offer nothing whereas they previously had to offer at least 1 cent. The same is true as to the West Penn MLS. 

The Court does not find the evidence of modest modifications made by two MLSs to one of the Challenged Restraints to be fatal to Plaintiffs’ ability to demonstrate classwide impact through common proof. [Citations removed, emphasis added, line breaks added for legibility]

There have been many industry insiders — my podcast partner Greg Robertson in particular — who thought that the evidence from NWMLS proves that sellers would have no problem offering compensation to buyer agents even if they did not have to.

The trial phase might show that the jury is convinced by this evidence, but it is equally clear to me that Judge Wood isn’t having any of that here. She literally calls that change, which made all kinds of news inside the industry, a “modest modification.”

Furthermore, this passage raises the real possibility that non-NAR affiliated broker-owned MLSs are not out of the woods when it comes to copycat litigation that will follow the Moehrl playbook exactly. Even if you did not require compensation, and allowed sellers and listing agents to put in $0 in compensation, you might still find yourself on the hook… because 99.75% of sellers continue to offer compensation and your rule change is a “modest modification.” Be warned.

On “Typicality” and the Covered MLS

Another new tidbit I read, and one that will be important not in this trial but in future trials, has to do with the issue of “typicality.” Basically, to be granted class action status, there is a requirement that the claimed injury is the result of “the same event or practice or course of conduct that gives rise to the claims of other class members and is based on the same legal theory.” In other words, the named plaintiffs are “typical” of the other plaintiffs in the class.

Defendants had argued that the Moehrl class lacked this “typicality” because the named plaintiffs had listed their homes in only five of the twenty Covered MLSs. The court swats this argument down in a hurry:

That some class members listed their homes on different MLSs than Plaintiffs does not create a typicality issue because all Covered MLSs implemented the Challenged Restraints. See In re Ready-Mixed Concrete, 261 F.R.D. at 168 (“If the named class members’ claims are based on the same legal theory or arise from the same course of conduct, factual differences in date, size, manner, or conditions of purchase, the type of purchaser, or other concerns do not make plaintiffs atypical.”) As a result, Plaintiffs’ claims share the same essential characteristics as the rest of the class and typicality is established.

I think this is potentially important not for Moehrl, but for every copycat case that will come after Burnett and Moehrl. I now believe that any plaintiff can sue any MLS that “implemented the Challenged Restraints” — in other words, complied with NAR’s MLS policies and Code of Ethics provisions — and any brokerage who listed a home in that MLS, and make a class action out of it because typicality will not be an issue in every single one of those future cases.

Courts follow precedent of other courts, and here, Judge Wood gives the rationale to every judge in future cases on how to deal with the typicality issue.

On Steering

Another interesting piece, which reinforces my belief that Judge Wood has already made up her mind and it’s now up to the jury to make up its mind, comes from dismissing the Defendant’s arguments that the Plaintiff’s theory about steering is merely academic and theoretical.

Moreover, contrary to Defendants’ characterization of Plaintiffs’ steering theory as abstract economic theorizing, Plaintiffs offer real-world evidence supporting the presence of steering in residential real estate transactions. Most prominently, Elhauge analyzes data regarding commission rates in the Covered MLSs and observes that commissions clustered around standard rates in each Covered MLS. During the class period, at least 90% of home sales in 17 of the 20 Covered MLSs featured buyer-broker commissions clustered around three standard rates. And 94% of sales in all Covered MLSs compensated buyer-brokers at rates of between 2.4% and 3.0%, with 85.5% of commissions in the Covered MLSs paid at one of four rates within that range: 2.4%, 2.5%, 2.8%, and 3.0%. [Citations omitted; emphasis added.]

If you’re a lawyer in a different case suing the local MLS, do you even need to hire your own expert witness? Can’t you just cite what Judge Woods cites here? I mean… Jesus H. Christ.

That’s followed up by this brutal paragraph:

Plaintiffs also note that Elhauge’s expert opinions regarding steering incentives in the residential real estate industry have been echoed by the Department of Justice and the Federal Trade Commission. Finally, Plaintiffs highlight evidence showing that Corporate Defendants themselves train brokers to wield the risk of steering against those sellers who seek to pay lower rates of commission. Consistent with that training, Plaintiffs have proffered evidence that tends to show that brokers affiliated with Corporate Defendants’ brands do, in fact, tell sellers that reducing commissions below the standard rates for their market could result in buyer-brokers avoiding their homes.

In case you were wondering, it turns out that the DOJ and the FTC probably have quite a bit of influence over how Federal judges and their clerks think about things. There being little doubt that the DOJ and FTC are watching this case, as they watch other cases, and will intervene as they deem fit, as they have in other cases, I think the influence of the DOJ (which is pissed off at NAR) is not to be underestimated.

On Benefits Outweighing the Cost

A real popular counter to the Moehrl plaintiffs, particularly from the MLS circles (for example, the Council of MLS commissioned a study on the benefits of the cooperation and compensation system) is that even if there are some negatives to sellers from having to pay compensation to buyer brokers, the system as a whole delivers far more benefits to sellers.

In particular, the Defendants argued that sellers were and are and will be buyers and that having the seller pay the commission lets buyers finance it so any “harm” is offset by the gains they had as buyers. The court swats that aside:

All of Defendants’ arguments as to the benefits to the class are grounded in the class members’ ability to pass on the cost of buyer-broker commissions to the buyer by including that cost in their home’s sales price. But the Supreme Court has barred antitrust violators from relying on such a “passing-on defense.”

Yep, that ain’t gonna work.

On History

A brutal dismissal comes when the Defendants bring up the long history of subagency and argue against Dr. Elhauge saying he failed to “square the long-standing practice of sellers paying for their buyers’ brokers with his conclusion that sellers would no longer bear those costs in the but-for world.”

The court writes:

Defendants’ history of broker compensation practices conveniently elides the NAR’s involvement in shaping historical compensation practices in the real estate market. Moreover, those earlier practices were themselves subject to antitrust scrutiny. See, e.g., United States v. Nat’l Ass’n of Real Estate Bds., 339 U.S. 485 (1950).

That’s just… rough. That’s the court saying, “You guys created that history, and oh by the way, the Supreme Court said that history was anticompetitive.” Ouch.

On Damages

A final Holy #&@$ moment comes when the court discusses damages. As mentioned above, the Plaintiffs here are only seeking “overpayment” by 1.55% instead of the full buy-side commission. Defendants made an issue of that, because of “flaws in Plaintiff’s theory of damages that preclude class certification.” The court denies that line of attack, but then goes on to write:

Certainly, in conservatively assuming that all class members would have both sold to buyers using buyer-brokers and covered the buyer-brokers’ commissions, Economides’s model likely leaves some damages on the table when viewed in conjunction with Plaintiffs’ theory of impact. Nonetheless, Plaintiffs make a permissible strategic choice to seek only the damages that they believe they can efficiently prove with certainty—the supracompetitive portion of the class’s commission payments—and forgo the more complex task of determining which class members are entitled to a full refund.

Perhaps Plaintiffs’ choice might give a class member reason to opt out of the class if they believe they are entitled to recover the entirety of the buyer-broker commission. But Defendants cannot defeat class certification by insisting that, if found liable, they should owe the class more money than the figure produced by Economides’s damages model.

Had Plaintiffs relied on a damages model that assumed all class members would have paid nothing to buyer-brokers, Defendants would likely have protested that Plaintiffs’ damages figure was excessive. [Emphasis added; citations removed; line breaks added for legibility]

OMFG. That last sentence. I’m not sure that the judge’s face was filled with contempt as she was writing it, but if it were… I wouldn’t be surprised at all.

Conclusion

We’re going over 3,000 words. Let me leave things there.

This post is meant to summarize the actual opinion and highlight the few new tidbits that might be relevant in this particular lawsuit, and possible future lawsuits. But a big picture “So what does this mean?” post will need to wait. Part of it is that I’ve already written that post over and over again. Any reader who’s been with me for a couple of years will have read them all.

But the other part is that combining all of those with all of the other recent developments, such as the NAR v. United States and the DOJ’s intervention into PLS.com v. NAR and Top Agent Network v. NAR and Rex v. Zillow and others all bear some thinking about.

However, in light of this opinion, and in light of everything else I’ve seen… and as preparation for that “What does this mean?” post… let’s leave this off with this observation: NAR will lose this case.

-rsh

So last Friday, the Department of Justice formally filed an appeal of the trial court’s ruling in its fight against NAR with the US Court of Appeals for the DC Circuit. This was as obvious and as predictable as the sun rising in the East. I wrote about that in a special public VIP post here.

While I’ve been looking for the actual brief that the DOJ filed with the Court of Appeals, I don’t think it’s available to the public just yet. So in the meantime, I decided to have some fun with AI on this, while learning the capabilities of ChatGPT.

So here is what the AI thinks is likely to happen.

Question 1

The first question I asked ChatGPT is: “Is an interim agreement between the DOJ and the defendant in the absence of a public hearing legally enforceable?”

Answer:

An interim agreement between the DOJ and a defendant in an antitrust case may be legally enforceable if it meets the requirements of the Tunney Act. However, such agreements do not become final until after the court has conducted a public hearing and approved the settlement.

Under the Tunney Act, the DOJ must file any proposed antitrust settlement with the court and allow for a period of time for public comments. The court must then conduct a public hearing to determine whether the settlement is in the public interest. If the court approves the settlement, it becomes effective immediately, and the defendant must comply with its terms.

In some cases, the DOJ and the defendant may enter into an interim agreement while the Tunney Act process is ongoing. This may be done to preserve the status quo or to avoid further harm to consumers. However, any interim agreement must still comply with the requirements of the Tunney Act, including the requirement that the court conduct a public hearing and approve the settlement before it becomes final and enforceable.

Therefore, an interim agreement between the DOJ and a defendant may be legally enforceable in the absence of a public hearing, but only if the court later approves the settlement after conducting a public hearing and finding that it is in the public interest. [Emphasis added]

Since nothing in the trial record suggests that the district court conducted a public hearing or found that enforcing the no-investigation interim settlement is in the public interest, I’m thinking the Court of Appeals likely reverses.

But let’s continue.

Question 2

I read the Tunney Act. Well… I skimmed it. So I asked my AI assistant to see if it would do the research for me. Here’s my question: “What actions by the government are specifically required by the Tunney Act?”

Answer:

The Tunney Act specifically requires the government to take the following actions when seeking court approval for an antitrust settlement:

1. File the proposed settlement and any other relevant documents with the court.
2. Publish the proposed settlement and any other relevant documents in the Federal Register and a newspaper of general circulation.
3. Allow for a period of at least 60 days for public comments on the proposed settlement.
4. Consider and respond to any public comments received on the proposed settlement.
5. Request that the court conduct a public hearing to determine whether the proposed settlement is in the public interest.
6. Provide notice of the public hearing to the public, including the publication of notice in the Federal Register and a newspaper of general circulation.
7. Present evidence and arguments at the public hearing to support the proposed settlement.
8. Consider and respond to any further comments or evidence submitted at the public hearing.
9. Obtain court approval of the proposed settlement after the court has considered all relevant factors, including the impact of the proposed settlement on competition and the public interest.

Once the proposed settlement has been approved by the court, the defendant must comply with its terms. [Emphasis added]

Again, since the trial record from the lower court is missing any evidence that the emphasized required actions were taken by the DOJ… primarily because the DOJ withdrew from the settlement agreement… I think it’s pretty straightforward that the Tunney Act requirements were not met, which means the settlement is not legally valid.

Question 3

Now we get to the heart of the matter. I asked ChatGPT: “If the DOJ withdraws from the settlement under Tunney Act, are interim settlement agreements enforceable?”

Answer:

If the DOJ withdraws from a proposed settlement under the Tunney Act, any interim settlement agreements that were entered into while the Tunney Act review was ongoing may no longer be enforceable. This is because the interim agreements are often contingent upon the final approval of the proposed settlement by the court.

If the DOJ withdraws from the proposed settlement, it means that the settlement has not received final approval from the court, and any interim agreements that were entered into are no longer enforceable. The defendant would need to negotiate a new settlement with the DOJ and undergo the Tunney Act review process again before a new settlement could take effect.

It is worth noting that the court ultimately has the authority to approve or reject a proposed settlement, even if the DOJ has withdrawn from it. If the court determines that the proposed settlement is still in the public interest, it may still approve the settlement, and any interim agreements that were entered into may become enforceable. [Emphasis added]

Since ChatGPT likes to do a lot of “maybe, if this then that, and depends” kind of answers, I think the “may no longer be enforceable” is about as straight an answer we’re likely to get from an AI.

We know that the court did not approve the final proposed settlement, even after the DOJ withdrew, so that won’t apply here. Since interim agreements are “often contingent upon final approval” — which makes all kinds of sense — they are not valid and not enforceable.

But what if the no-investigation settlement was not contingent? That’s NAR’s position, and the lower court agreed with that.

Question 4

So I asked ChatGPT about that: “Could an interim settlement agreement be not contingent on final approval of the proposed settlement under Tunney Act?”

Answer:

An interim settlement agreement could potentially be structured in a way that is not contingent upon the final approval of the proposed settlement under the Tunney Act. However, this would be highly unusual, as the purpose of the Tunney Act review process is to ensure that any proposed antitrust settlement is in the public interest and that the terms of the settlement adequately address the anticompetitive concerns at issue in the case.

Typically, interim settlement agreements are negotiated while the final settlement is being reviewed under the Tunney Act, and they are intended to maintain the status quo or to address urgent concerns while the review is ongoing. As such, interim agreements are usually contingent upon the final approval of the proposed settlement by the court.

If an interim settlement agreement were not contingent upon the final approval of the proposed settlement under the Tunney Act, it would likely require a separate legal mechanism for enforcement, as the Tunney Act review process is specifically designed to ensure that proposed antitrust settlements are in the public interest and adequately address anticompetitive concerns. Without Tunney Act review and court approval, the enforceability of any settlement agreement would be uncertain. [Emphasis added]

As expected, not a definitive straight answer. But boy, that seems fatal to NAR’s case on appeal.

First, any interim agreement not being contingent would be “highly unusual.” It also makes zero sense practically or logically. So that’s a problem.

Second, even if the interim agreement were somehow not contingent, in an antitrust context, that agreement is on shaky ground. The whole point of the Tunney Act is to ensure that any settlement is in the public interest, and there are specific steps that have to be followed before such a determination can be made. The judge in the lower court did not issue any finding that enforcing the interim agreement is in the public interest, and many of the specific steps were not followed.

Conclusion

The main conclusion to be drawn, I think, is that ChatGPT is a lot of fun. It’s also quite useful in research. Frankly, the most useful thing I got from using AI here was reference to sources. I asked ChatGPT for sources for its answers and got this list back:

1. The Tunney Act (15 U.S.C. § 16) – This is the federal law that sets forth the requirements for court review and approval of proposed antitrust settlements.
2. United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) – In this case, the D.C. Circuit Court of Appeals held that the Tunney Act requires the government to file the proposed settlement with the court, allow for a period of public comment, and obtain court approval before the settlement can take effect.
3. Federal Trade Commission, Bureau of Competition, Policy Statement on the Commission’s Role in the Re-Approval Process for Proposed Final Judgments, 67 Fed. Reg. 60,827 (2002) – This policy statement explains the FTC’s procedures for obtaining court approval of proposed antitrust settlements, which are similar to those required by the Tunney Act.
4. United States v. SBC Commc’ns Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) – In this case, the court explained the procedures required by the Tunney Act, including the filing of the proposed settlement with the court, the publication of notice in the Federal Register and a newspaper of general circulation, and the conduct of a public hearing to determine whether the proposed settlement is in the public interest.

That’s not bad for 2 minutes of work! This is the kind of work I used to do as a summer intern at a law firm; do research and then summarize the key findings.

I’ll have to explore this new AI tool in more detail in the future, but boy, it’s impressive so far.

The secondary conclusion, of course, that can be fairly drawn is that NAR will lose in the DC Court of Appeals. One can never be certain with lawsuits, and ChatGPT never likes to give definitive answers, but… yeah… looks bad for NAR on this particular case.

-rsh

PS: Am I the only one who finds this video amusing as hell, but terrifying as well?