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A pair of Illinois homebuyers last week filed a new commission lawsuit against a trio of real estate companies, highlighting the ongoing nature of litigation over agent pay even as most of the industry adapts to the new normal.
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Homebuyers Dawid Zawislak and Michael D’Acquisto filed the federal case Thursday. According to the complaint, Zawislak’s involvement in the suit stems from a 2021 purchase of a property in Chicago. D’Acquisto is suing over the 2022 purchase of a home in Bartlett, Illinois. The suit names Equity Realtors, HomeSmart International, and Fathom Realty as defendants.
The suit does not name NAR as a defendant, but does describe the trade organization and affiliated multiple listing services as “co-conspirators.”
News of the suit was first reported by The Real Deal.
The lawsuit hews closely to others over agent commissions. It accuses the defendants and co-conspirators of engaging in “anticompetitive practices that harmed consumers and homebuyers by, among other things, increasing and artificially sustaining the commissions paid to real estate brokers as part of residential real estate transactions.” Like other suits, it specifically takes issue with NAR’s Cooperative Compensation Rule, which required sellers’ agents to make offers of compensation to buyers’ agents in their NAR-affiliated MLSs.
The rule, also known as the Participation Rule, was abandoned as part of NAR’s landmark settlement in a variety of other suits. Notably, however, that settlement only covers suits from homesellers, and a number of suits from buyers are still working their way through the courts.
The new suit — commission cases are usually known by the name of their lead plaintiff, meaning this one will be referred to as “Zawislak” — raises a number of specific issues with the way NAR and affiliated organizations handled agent pay in the past. For example, the complaint states that NAR and MLSs let agents filter “properties by commission amount, and NAR ethics rules allowed buyer-agents to show these filtered properties with higher commissions to buyers.”
The complaint also criticizes policies “limiting the ability of sellers and seller-brokers to change the commissions offered to buyer-agents after a purchase offer is made” and “that allow and encourage buyer-agents to inform homebuyers that their services come at no cost.”
The suit ultimately levels four counts against the defendants, including violating the Sherman Antitrust Act and breaking other laws related to price fixing, fraud and unjust enrichment.
The case seeks class-action status, and according to the complaint “there are greater than 100 putative class members.” The plaintiffs conclude the complaint by asking the court to award an unspecified sum in damages.
Read the full complaint here (if the document doesn’t immediately appear, try refreshing the page):
