Musings on Mandatory Injunctions

Purely theoretical, but possibly prophetic

As I write this on Monday, October 16th, the Burnett v. NAR case is being heard in Courtroom 7B, Kansas City (SRB) of the Federal District Court in the Western District of Missouri.

There have been, still are, and will likely be numerous opinions on the impact of the case. All such opinions, including my own, are premised on the idea that NAR and the remaining corporate defendants (KW and HomeServices) lose.

The predominant opinion in the industry appears to be that not much would change, since listing agents can already put in $1 in the compensation field, and NAR recently changed its rules to allow $0 to be put into the compensation field.

I think that opinion is based on the settlement in Nosalek v. MLS PIN, where the court approved a new scheme that made compensation optional and negotiable. Thing is… the DOJ has already filed a protest of sorts against that settlement, without specifying exactly what their problem with it is.

I’ve had a couple of very interesting discussions offline about what an injunction could look like from Burnett. Thought I’d look into one possibility. This is purely theoretical, but I do think it could prove to be prophetic. I could see the judge overseeing Burnett actually do something like this.