HousingWireHousingWire
The Manhattan Institute (MI) is the latest organization to take issue with the National Association of Realtors’ (NAR) commission lawsuit settlement agreement.
On Thursday, MI asked the Eighth Circuit Court of Appeals if it could file an amicus curiae brief in the appeal of the final approval of NAR’s settlement.
The institute describes itself as “a nonpartisan public policy research foundation committed to advancing the principles of limited government, free enterprise, and the rule of law.”
According to the filing, the organization regularly participates in cases as “amicus where the boundaries between judicial action and legislative responsibility are at stake, particularly in matters involving economic regulation.”
In its proposed amicus brief, MI calls the NAR settlement “novel and overreaching.” It urges the court to “reconsider the legitimacy and consequences” of the agreement.
“This case raises serious concerns that go beyond antitrust liability and touch directly on the constitutional separation of powers,” the proposed brief states. “In using a class-action settlement to impose far-reaching structural reforms on the real estate industry — without trial, statutory mandate, or genuine public deliberation — the district court has effectively acted as a regulatory body rather than a neutral arbiter of the law.”
MI believes that the settlement is an example of the “troubling expansion of judicial power through private antitrust litigation.”
“Rather than address a proven violation of law, the court has endorsed sweeping injunctive relief that reconfigures a significant sector of the U.S. economy — real estate brokerage — without legislative authority or public accountability,” the filing states.
The institute claims that the case and settlement reflect the “alarming” use of class-action lawsuits to enact regulatory reforms “through judicial decree, bypassing the separation of powers and legislative deliberation fundamental to our constitutional system.”
The organization argues that the courts lack the “institutional competence to restructure complex markets,” claiming that courts “are ill-equipped to engage in this kind of reform.”
“Unlike legislatures, they do not hold hearings, solicit expert testimony, weigh competing policy goals, or deliberate over broad economic consequences,” the filing states. “Judicial proceedings are narrow in scope and adversarial by design; they cannot accommodate the complexity or diversity of views necessary for legitimate economic policymaking.”
MI highlights the settlement’s restriction to not allow offers of buyer broker compensation on the MLS as an example of an action that is “not supported by record evidence or tied to an adjudicated violation; it reflects a negotiated workaround, not a legal judgment.”
Additionally, MI claims that the settlement imposes de facto regulation without accountability or authority.
“Without banning the practice that plaintiffs alleged to be per se unlawful — cooperative compensation — the settlement bars MLSs from publishing commission offers,” the filing states. “This step does not eliminate the incentive structures plaintiffs challenged; it simply obscures them, making the process more opaque and potentially less efficient.”
The brief also takes issue with buyer broker agreements and cites the Department of Justice’s warning about their use.
The Eighth Circuit has yet to decide if it will accept the brief as it considers the appeal of the approval of NAR’s settlement.
