Real estate brokers or salespeople who act as if there is a conspiracy among competitors in order to not cooperate with another competitor, or in order to deal with them only on terms established by the conspirators, are as vulnerable to an antitrust lawsuit as those who actually do conspire. Salesperson comments that create such troublesome inferences of boycott conspiracies include:
- “Before you list with XYZ Realty, you should know that nobody works on their listings.”
- “The MLS will not accept their listings because they charge a flat fee.”
- “If they were truly professional, they would not allow part-timers to work for them.”
- “I bet they’d drop their ‘discount’ program if we told them they couldn’t market or sell our listings.”
Brokers whose salespeople make comments such as these to buyers, sellers, or persons affiliated with other firms will find their ability to adjust the terms and conditions upon which they cooperate with other firms severely restricted. Case law clearly establishes that brokers are free to choose unilaterally to lower the compensation offered to one or more particular firms, including “discount” or “alternative service” firms. But if a broker does so only after discussing the “problem,” even casually, with other firms, the inference may be drawn that this action was pursuant to a conspiracy to boycott the other firm. This is especially true if, as is often the case, other firms in the market make similar contemporaneous decisions to lower their compensation offers to the same firm.
Licensees asked to compare their firm’s commission split policies with those of other firms should explain that the amount of cooperative compensation is designed to maximize the incentive of cooperating offices to sell the listing. On the other hand, a licensee who works for a firm which offers a lesser amount to cooperating firms than may be “typical” for that market must be prepared to explain why this difference will not detract from the objective of attracting the efforts of cooperating brokers and securing a satisfactory transaction in the shortest period of time.