Who opted in to the NAR settlement? ‘It’s all over the place’ 

The National Association of Realtors is keeping quiet about who has opted in (or not) to its $418 million commissions settlement, so it will likely be weeks before court filings reveal what the 90-some brokerages and 30 multiple listing services that are not covered by the deal decided.

However, Brian Schneider, an attorney for Bright and other top MLSs, says he's "pretty sure every (Realtor-owned) MLS, with rare exception, has opted in." And those that aren't Realtor-owned? He's convinced most will opt in as well, "but I don't know that for sure." Real Estate News has also reached out plaintiffs' attorney Michael Ketchmark for comment.

SmartMLS, which is Realtor-owned, announced on deadline day — Tuesday, June 18 — that it was reluctantly opting in. Northwest MLS, which is not Realtor-owned, previously said it would not be. And MLS PIN, which is on its own path to a separate settlement, has also not opted in.

What it means for an MLS  to opt in: For MLSs owned by Realtor associations, opting in means agreeing to the terms of the NAR settlement and removing offers of compensation from their platforms. Non-Realtor MLSs that opt in must also agree to those terms — and pay damages equal to 100 multiplied by their number of subscribers in 2023.

What about the brokerages? They are going to be "all over the place," Schneider said.

"The position the top 90-plus brokers were put in was unaffordable," he added, a sentiment echoed by Maurico Umansky, founder and CEO of The Agency. He said on June 20 that his company chose mediation. The other option, which uses a formula to calculate a payment, "would have taken me out of business," he told Real Estate News. "Literally unaffordable."

"In my analysis, there's very little incentive to opt in, even to the mediation option versus not opting in and letting the plaintiffs come in," Schneider said. "I'm not sure one option is better than the other."

However, he did point out that the legal peril a brokerage might face has "lots of wrinkles." For a brokerage to be sued requires a lawyer to connect with a plaintiff in their area and file a separate case — it's not just a matter of piling on to the Sitzer/Burnett case in Missouri.

What it means for a brokerage to opt in: Brokerages with an annual sales volume of more than $2 billion are not covered by the NAR deal, and if they choose to opt in, they must agree to change their commissions practices and pay an amount equal to .0025 multiplied by their average annual transaction volume over the last four calendar years. 

A brokerage that averaged $2 billion, for example, would have to pay $5 million into the settlement account.