“The number one maxim in real estate is that all real estate is local,” Gringer says. “I’m in New York, and I know the real estate market here is very different than outside of Pittsburgh, Ohio, Missouri. You can’t guess what practices are.”
“In fact, different regions do things differently,” Grainger added. “The West Penn MLS had different rules and practices than those at issue in Missouri. Plaintiffs attempted to argue that the different practices were the same as those in Missouri, but the court’s honor For God’s sake, he took the time to consider the argument and realized that this is not the way things are done here.”
Although the court’s decision only removes Howard Hanna from the Moratis case, the outcome is still “significant,” Gringer said. He’s not the only one who thinks so.
“There are so many big real estate companies in the area that haven’t had a settlement. I think this will certainly be a boost for them,” said Charles Cain, an attorney with the firm. Star Cow Law Group and the president alliance solution.
Mr. Kane echoed Mr. Grainger’s view, noting that real estate is not traded the same way in every county across the country.
“A lot of the real estate is very localized and as these cases progress, there can be real inconsistencies in terms of verdicts and decisions by the courts,” he said. “Slightly different actual scenarios regarding how the multiple listing services at issue work could result in different verdicts.”
For Mr. Kane, the fact that the Multidistrict Litigation Committee refused to consolidate several Board cases was an important indicator that they were not as similar as they were often made out to be.
“West Penn MLS is independent from NAR and does not have the same rules as the MLS that was at the center of the Sitzer/Barnett lawsuit,” Cain said. “As each of these cases progresses and factual differences exist, more of this may occur.”
Paul Rogers, an antitrust law professor at Southern Methodist University, said it’s not uncommon for lawsuits with similar issues to have different outcomes.
“Litigations are fact-based, and judges certainly try to apply the law consistently, so it’s possible that different facts could lead to a different verdict,” Rogers said. “In some ways it’s surprising because we got a verdict and everyone settled. But West Penn MLS is an independent MLS with its own rules that are different from NAR.
“So, given these different facts, if you had a really good law firm represent you and you decided to litigate, yeah, the outcome would very likely be different.”
While a different outcome may be good news for other defendants pursuing these lawsuits, Cain believes Howard Hanna’s firing will only cause further confusion and confusion in the industry.
In his view, if a brokerage firm like Howard Hanna is successful in having the lawsuit dismissed, it could potentially publish buyer-broker compensation offers on the MLS, if the local MLS still allows it. There is also. But importantly, franchise brokerages like Anywhere and RE/MAX that operate within the same MLS (which agreed to eliminate this practice as part of the settlement) can no longer engage in this practice, creating a regulatory patchwork. That’s what happens.
“It will only add to the confusion. There will be no clarity — at least not in the near future,” Cain said. “Any win right now is a win for real estate companies, but really, as the industry sorts itself out, it’s going to be important how things move forward over the next year or two.”
