BrokerageReal Estate

Judge forces Anywhere to hand over documents

Anywhere must produce all documents relating to its nationwide implementation of the “Buyer Broker Commission Rule”

A U.S. District Court judge in Boston on Monday partially granted a motion to compel real estate conglomerate Anywhere (formerly known as Realogy and referred to as such in the suit and legal proceedings regarding the case) to produce all documents relating to its implementation of what the plaintiffs refer to as the “Buyer Broker Commission Rule,” across the country.

The class action lawsuit known as Nosalek V. Mls Property Information Network, Inc. Et Al, as originally filed in December 2020, and alleges that large, broker-owned multiple listing service MLS PIN is not directly required to abide by National Association of Realtors rules but has nonetheless adopted a rule similar to a NAR rule that requires listing brokers to offer a blanket, unilateral offer of compensation to buyer brokers in order to submit a listing to MLS PIN.

MLS PIN has approximately 46,000 agent and broker subscribers throughout Massachusetts, Rhode Island and New Hampshire.

According to the plaintiff’s filing, other defendants, including RE/MAX, Keller Williams and HomeServices of America, had agreed to produce documents on their implementation of the rule nationwide, so long as those documents aren’t tied to implementation of the rule in specific geographic regions other than that of MLS PIN. Anywhere, however, refused to produce documents regarding the implementation of the rule outside of MLS PIN’s service area. In response, the plaintiffs filed a motion to compel in August.

Ultimately a judge granted the plaintiffs’ motion “to the extent it seeks discovery from Anywhere on the same terms to which the other broker defendants have agreed” but denied it “to the extent it seeks discovery outside the scope of the agreement with the other broker defendants.”

During a livestreamed late September hearing regarding the plaintiffs’ motion, Magistrate Judge M. Page Kelley, told Anywhere’s counsel at the hearing, “I am just a little baffled about why you wouldn’t join in the compromise that everyone else has. It just seemed like you’re kind of an outlier on that.”

In response to Anywhere’s arguments that “nationwide discovery is not relevant for a three-state claim,” Kelley wrote in the order: “Such discovery is relevant to plaintiffs’ claim, first, because Section 5 and the NAR Rule are substantively identical and Section 5 almost certainly was modeled on the NAR Rule. Second, plaintiffs allege that Anywhere was involved in, if not the implementation, then at least the perpetuation of both rules.”

At the time of publication, counsel for the plaintiffs had not returned a request for comment. Anywhere declined to comment on the matter.