Burnett Case Resources
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Updated on November 13, 2023
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Burnett v. NAR: Resources, Legal Guidance & FAQs for Realtors

Resources from Florida Realtors to help members understand how the Burnett v. NAR ruling affects how they do business.

In October 2023, a Missouri federal jury found the National Association of Realtors® and other corporate defendants liable in the case of Burnett v. NAR et al., concluding that having sellers pay buyer brokers' commissions violates antitrust statutes and inflates buyers’ costs. 

NAR had presented in court that its rules prioritize consumers, support market-driven pricing and promote business competition. This matter is not close to being final as NAR will appeal the jury’s verdict. It will likely be several years before this case is finally resolved.   

In the meantime, Florida Realtors® wants to ensure our members have a clear understanding of how the ruling affects their business and the resources to continue to do their jobs.

Two things you need to be doing

For now, there isn't anything Realtors®, brokers, state/local associations or MLSs need to do differently because of this verdict. 
However, NAR has emphasized for many years two important things:

  1. One is the use of buyer representation agreements, which maximize transparency by putting all agreements in writing to ensure the type of clarity and understanding required by the NAR Code of Ethics. These agreements formalize the professional working relationship with clients. They detail what services consumers are entitled to and what the buyer agent expects from their client.
  2. Second, it’s imperative for members to continue to express that commissions are negotiable and set between brokers and their clients; to explain how local MLS broker marketplaces promote equity, transparency and market-driven pricing for consumers; and to persistently communicate the incredible value agents who are Realtors provide.

FAQs

What does this mean for me and my business?

  • We all should continue to express that commissions are negotiable and set between a broker and their client.
  • As always, it is critical to maximize transparency with your clients about their choices and your terms.
  • Continue to use your listing and buyer agreements to help them understand 1) exactly what services and value you are providing and 2) how much you charge. 

For buyers, this includes options for offers of compensation from a listing broker or paying for your services directly or a combination.

For sellers, this includes options to allow offers of compensation to be made by their listing broker to a buyer's broker, and if so, how much and under what terms.

What should I tell my clients who ask me about the verdict or lawsuits?

  • The National Association of Realtors believes that the jury reached an outcome that is neither supported by the law nor the facts presented in the case and plans to appeal.
  • The trial had to do with a very pro-consumer rule for local MLS broker marketplaces where listing brokers make offers of compensation to buyer brokers who identify someone who wants to buy the sellers' home.
  • Those offers can be any amount, can vary over time, are based on things like service and the market, and are negotiable. Neither the buyer nor seller broker gets paid until the home sale and purchase close based on what the seller and buyer have agreed to in writing.
  • The offer of compensation practice ensures efficient, transparent and accessible marketplaces where sellers can sell their homes for more and have their homes seen by more buyers while buyers have more choices of homes and can afford representation.
  • Plaintiffs have said wealthy people could still afford representation without the practice, but that hardly seems fair. The National Association of REALTORS® is going to continue to advocate for this pro-consumer practice and, as noted, plans to appeal the jury's verdict.
  • Know that agents who are REALTORS® will still and always be there for clients to guide you through the financial, legal and community complexities of buying and selling a home. 
  • The verdict doesn't change the many choices buyers and sellers have when deciding whether to hire a real estate agent who is a REALTOR®. Compensation will continue to be negotiable and set between a broker and their respective client, as it always has been. 

What are the next steps legally and the timing?

This matter is not close to being final as we will appeal the jury’s verdict, and we remain confident we will ultimately prevail. In the interim, we will ask the court to reduce the damages awarded by the jury. Due to the nature of appeals, this case likely will not be concluded for several years.  

What does the future of buyer representation look like as a result of the verdict?

If class action attorneys had it their way, buyer representation would be very much at risk because many first-time home buyers, among others, couldn’t afford to pay for representation out of pocket. Members must take every opportunity to express how they are experts who guide consumers through the financial, legal and community complexities of buying or selling a home.

How does this verdict affect other ongoing litigation, including the other seller lawsuit?

It doesn’t. Cases are tried separately, and we remain confident we will ultimately prevail. We have a strong case we’ll present on appeal because our rules are pro-consumer and pro-business competitive.

Would NAR ever consider changing the cooperative compensation rule?

This rule has always been in place to protect and serve the best interests of consumers, support market-driven pricing and advance business competition. NAR consistently reviews and considers evolving its rules in a way that responds to changes in the industry and what best serves consumers.

Do you expect the plaintiffs to seek an injunction requiring NAR to stop making the rule mandatory or eliminate the rule?

We cannot predict what plaintiffs will do. We would contest any such effort because this rule always has been in place to protect and serve the best interests of consumers, support market-driven pricing and advance business competition.

What can I do to help?

  • It's so important that as real estate agents who are REALTORS®, we continue to demonstrate the real value we bring as we guide consumers through the financial, legal and community complexities of buying and selling a home.
  • There are so many great resources at the REALTORS® as Champions section of the competition.realtor website, including infographics you can reference, post and share.

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