The Sitzer/burnett Data Motion Is A Compliance Warning

On July 23, plaintiffs in the Sitzer/Burnett and Gibson cases asked Judge Stephen Bough to enforce something this industry already agreed to. As HousingWire reported, they want the listing and commission data that MLSs promised to hand over when they opted into the National Association of Realtors settlement.

The obstacle is a vendor. FBS, which powers Flexmls, declined to release the data without explicit permission from each MLS, and will not say which MLSs are withholding it. So, the plaintiffs proposed a rule. Notify every opted-in MLS. Give each one seven days to object. Treat silence as consent.

Read the headline and this looks like housekeeping. Read the filing, and it is not.

Why the data is the story

Listing and commission data does two jobs. The stated one is compliance. Did the MLS strip the compensation fields? Did the rule changes take hold?

This data is the raw material for whatever comes next. Status history. Entry dates. The gap between when a listing agreement was signed and when the listing appeared. What was paid and to whom. If you wanted to learn whether listings are being routed around the MLS in a pattern, or whether concessions are quietly doing the old co-op commission’s job, this is the dataset you would want first.

Lawyers who are finished do not keep a docket warm

Nearly three years after the verdict, the plaintiffs are still filing motions in Judge Bough’s courtroom.

The filing names the four plaintiffs, not their counsel. Michael Ketchmark of Ketchmark & McCreight is lead plaintiffs’ counsel in both Sitzer/Burnett and Gibson, so the reasonable read is that his team is behind it.

The practice changes are not complicated. An agent working with a buyer must have a written agreement before touring a home. It has to state a specific compensation amount or rate, not an open-ended number tied to whatever the seller offers. It has to say plainly that fees are negotiable and not set by law. And the agent cannot collect more than the amount in that agreement. Those are NAR’s own published terms.

Four rules. Now, walk your office and ask honestly how many of your agents follow all four, every time.

Two years in, the answer in most companies is not one hundred percent. Some still get it signed at the offer table. Some still write in language pointing to whatever the listing side is paying. Some have not read the form they hand to people.

That is a company problem, not an agent problem. The exposure runs up the chain, and a pattern across an office is worth far more to a plaintiff’s lawyer than one sloppy contract.

Beware of testers

There is a specific way that pattern gets documented, and most brokers have never thought about it.

Start with what Michael Ketchmark said out loud. When NAR was weighing Clear Cooperation in 2025, he said brokers voting to enforce the rule with anticompetitive goals could expect his firm to “take their depositions and hold them accountable.” He said much the same about MLSs that stayed out of the settlement. Nothing in his record suggests posturing.

So, think it through the way he would. If you have promised to hold noncompliant parties accountable, you first have to find out who is noncompliant. Filings and data tell you what happened on paper. They do not tell you what your agent says on the phone or in person.

A tester is someone hired to pose as a consumer in order to document what actually happens. Usually a licensed private investigator. Not a real buyer. The job is to call your office, ask ordinary questions, and write down the answers.

This is not a theory. Fair housing groups have used paired testers for decades to document steering, and the Supreme Court settled whether a tester can sue back in 1982. In Havens Realty Corp. v. Coleman, the Court held that a tester given false information has suffered a real injury and can sue, even though she never intended to rent the apartment. The technique is legal, cheap, and it produces the one thing that is hard to argue with in court: a written record of what your agent said, made at the moment he said it.

Now map it onto settlement compliance. A firm checking whether the practice changes are actually being followed hires an investigator to pose as a buyer. The investigator calls your office and sets an appointment with your agent. Suppose that agent sits down and runs the meeting the old way. Talks about houses. Draws out the buyer’s needs and wants. Then starts showing property. No conversation about agency. No discussion of the fee he charges. No signed buyer agency agreement compliant with the settlement.

That tester writes it up and hands it to the attorney. Now you are not defending a paperwork slip. You are the exhibit. That report is the kind of thing that turns one office into a named defendant, and antitrust damages are trebled automatically. Add the other side’s legal fees to your own. And do not assume your E&O policy is going to cover any of it.

I am not claiming a testing program is underway.

I have not seen that reported, and I will not assert it. What I am saying is that the tool is old, legal and cheap, and that last week’s motion suggests the plaintiffs’ side is still building a record. I’ve always said, “Plan for the worst, and hope for the best.” Every broker, manager, and agent should assume every buyer post NAR settlement is a tester. If you do, you will help protect yourself from the next lawsuit.

The fix is not complicated. Audit your files. Retrain your agents on the settlement rules and work from NARLawsuit.com, so you know the dos and don’ts. Spend the most time on the compensation language, because that is where the errors live. Then roleplay both the buyer phone call and the face-to-face appointment in a sales meeting until the compliant answer is automatic. One meeting and one file review, for less than the cost of a single deposition.

The second lesson: 562 MLSs, each one alone

When the court granted final approval, 547 Realtor MLSs and 15 non-Realtor MLSs had opted in. That is 562 organizations that made the same promise.

Under the proposed rule, each of those 562 gets a notice, and seven days. Each one decides alone, with its own board, its own attorney, its own budget. A large MLS with in-house counsel can work that out in an afternoon. A small one with six staff and a lawyer on retainer may not get a real answer inside a week. And silence counts as yes.

Meanwhile one vendor sits in the middle, telling nobody who said what.

That is what happens every time something lands on this industry at once. Five hundred sixty-two separate reactions to one question. No shared position, no shared counsel, no shared voice. Compare that to the other side. One firm. One strategy. One filing that reaches everybody on the same day.

The MLS community keeps treating this as a technology question. It is not. It is whether America’s MLSs keep answering the biggest questions in this business one at a time, in isolation, on a seven-day clock, or whether they build a table where they can answer together.

The motion is small. The pattern it reveals is not.

Darryl Davis, CSP, is a national real estate speaker and coach with more than 40 years in the industry, bestselling author of How to Become a Power Agent® in Real Estate, and founder of the POWER AGENT® Coaching Program. For more info, go to DarrylSpeaks.com.

This column does not necessarily reflect the opinion of HousingWire’s editorial department and its owners.

To contact the editor responsible for this piece: tracey@hwmedia.com