278. See HUD REPORT, supra note 201. 279. One panelist who is a fee-for-service broker describes this as his "flat-fee plus" alternative, where, in addition to listing the house in the MLS and putting it on several websites, he supplies the seller help once the purchaser is found. In addition to the flat fee price of $495 paid at time of listing, the "flat-fee plus" alternative needs the seller also to pay $1,500 at closing.
at 68 (describing the choice). 280. In an address at the start of the Workshop, (then Acting) Assistant Attorney General Of The United States Thomas Barnett observed that minimum-service laws and policies can be deemed no different from states passing a guideline that states: "When I stroll into McDonald's and order a hamburger, I'm informed that I likewise need to purchase some french fries, due to the fact that the state has chosen that it may be deceptive or deceptive or bad if I just got the hamburger, paid for it and didn't recognize I wasn't going to get the french fries." Barnett, Tr.
Likewise, at a current Congressional hearing on competitors in the property brokerage market, Agent Baker analogized minimum-service laws and regulations to requiring a customer to have his or her entire house painted when he or she only wanted the porch painted. See Hearing, supra note 1, at 30 (statement of Rep.
Baker, member Home Comm. on Financial Services), offered at http://frwebgate. access.gpo. gov/cgi-bin/getdoc. cgi?dbname= 109_house_hearings & docid= f:31541. pdf. 281. See Farmer, Tr. at 105 (keeping in mind that he contends against conventional "agents out there that offer little or no value to the transaction."). 282. See Lewis, Tr. at 179 (" While some consumers might be sophisticated sufficient to represent themselves in some or all of the steps of a deal, a lot of are not.").
22, 2005, offered at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (estimating Texas Association of Realtors claiming that minimum-service rules would prevent customer confusion); Peter G. Baker, Working With a Broker: Should You Anticipate Less?, REAL ESTATE TIMES, Apr. 11, 2006, offered at http://realtytimes. com/rtcpages/20060411 _ hirebroker. timeshare renting htm (" [Federal government firms] argue that with disclosures and waivers consumers must be able to decline any brokerage service or obligation.
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We do not, for example, enable consumers to save cash by employing physicians who cut costs by not decontaminating surgical instruments or washing their hands."). 283. See Darryl W. Anderson, Minimum-Service Requirements in Property Brokerage: A Response to Maureen K. Ohlhausen, ANTITRUST SOURCE, Jan. 2006, at 3-4 (arguing that minimum-service requirements are procompetitive due to the fact that they promote price negotiations prior to getting in a representation contract over what a fee-for-service broker will charge for all the services needed by law).
See, e. g., GAO REPORT, supra note 3, at 16. 285. Thorburn, Tr. at 96. 286. Farmer, Tr. at 73. 287. In addition, in reaction to an FTC survey, respondents from Colorado, North Dakota, Vermont, and Washington kept in mind that complaints against restricted service brokers were very little or nonexistent. The questionnaire is available at http://www.
htm. 288. Our evaluation of fee-for-service broker sites exposes that customers appear to have all set access to prices that fee-for-service brokers charge for extra services beyond the MLS-only choice in advance of participating in a contractual relationship. This finding undermines a needed condition for the hold-up theory to be possible that consumers just discover the costs for extra services after they have actually participated in a special listing contract.
Ohlhausen, Minimum-Service Requirements in Property Brokerage: A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (talking about various theoretical and empirical factors why the hold-up theory does not appear to use to fee-for-service brokerage). 289. See Farmer, Tr - how to get leads in real estate. at 71-72. 290. Kunz, Tr. at 82-83. See also Perriello, Tr. at 152 (speaking for Cendant, and specifying that "we think that consumers.
need to be able to select their service models in addition to the provider of those services, whether they be restricted service or full-service"). 291. Sambrotto, Tr. how to be a real estate investor. at 116. 292. Farmer, Tr. at 72. 293. PATRICK WOODALL & STEPHEN BROBECK, CUSTOMER FEDERATION OF AMERICA, HOW THE REAL ESTATE CARTEL HARMS CONSUMERS AND HOW CONSUMERS CAN PROTECT THEMSELVES (June 2006), readily available at http://www.
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pdf. 294. Id. at 4-5. 295. See, e. g., Lewis, Tr. at 178-79; Sambrotto, Tr. at 114; Farmer, Tr. at 115. 296. Whatley, Tr. at 45-46. 297. See Katherine A. Pancak et al., Real Estate Agency Reform: Satisfying the Requirements of Buyers, Sellers, and Brokers, 25 PROPERTY L.J. 345, 350 (1997) (keeping in mind that agency relationships can be created by actions).
Whatley, Tr. at 48. 299. Preventing fee-for-service listings without disclosure to purchasers, however, might raise problems concerning the fulfillment of fiduciary duties. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Property Associations Base On MLS-Entry-Only Listings, REALTY TIMES, Feb. 24, 2005, offered at http://realtytimes. com/rtapages/20050224 _ mlsentryonly. htm. 302. OHIO CODE 4735.
18 of the Revised Code and negotiations performed by a licensee pursuant to the authorization shall not create or imply a company relationship between that licensee and the customer of that exclusive broker."). 303. VA CODE 54. 1-2132( C) (reliable July 1, 2007) (" A licensee engaged by a seller in a realty deal may, unless prohibited by law or the brokerage relationship, offer assistance to a purchaser or potential best company to sell your timeshare purchaser by carrying out ministerial acts.
304. WIS. CODE 452. 133 (6). 305. Sambrotto, Tr. at 90. 306. ForSaleByOwner. com Corp. v. Zinnemann, 347 F. Supp. 2d 868, 872 (E.D. Cal. 2004). 307. Id. at 879. 308. United States v. Realty Multi-List, 629 F. 2d 1351, 1374 (5th Cir. 1980) (" [W] hen broker involvement in the [MLS] is high, the service itself is financially successful and competitors from other listing services is lacking, rules which welcome the unjustified exemption of any broker should be discovered unreasonable.").
See, e. g., Thompson v. Metropolitan Multi-List, Inc., 934 F. 2d 1566, 1579-80 (11th Cir. 1991); Austin Bd. of Realtors v. E-Realty, Inc., No. Civ. A-00-CA- 154 JN, 2000 WL 34239114, at * 4 (W.D. Tex. Mar. 30, 2000). A discussion of the numerous personal lawsuits including declared MLS-related restraints is beyond the scope of this Report.
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For a discussion of special firm agreements and other kinds of noting contracts, see supra Chapter I.A. 2. 310. See Farmer, Tr. at 74-75; Sambrotto, Tr. at 90. 311. NAR 2005 SURVEY, supra note 38, at 29-30. 312. Austin Bd. of Realtors, FTC Dkt. No. C-4167; Information and Real Estate Solutions, LLC, FTC File No.
051-0065; Williamsburg Area Ass 'n of Realtors, Inc., FTC File No. 061-0268; Realtors Ass 'n of Northeast Wisconsin, Inc., FTC File No. 061-0267; Monmouth County Ass 'n of Realtors, Inc., FTC File No. 051-0217. 313. See, e. g., Details and Realty Solutions, LLC, FTC File No (how to invest in commercial real estate). 061-0087, at 6 (2006) (analysis to help public comment), offered at http://www.
pdf. 314. See, e. g., Austin Bd. of Realtors, FTC Dkt. No. C-4167, at 17 (2006) (grievance), offered at http://www. ftc.gov/ os/caselist/0510219/ 0510219AustinBoardofRealtorsComplaint. pdf. 315. Id. at 27. 316. See MiRealSource, Inc., FTC Dkt. No. 9321 (2007) (decision and order), readily available at http://www. ftc.gov/ os/adjpro/d9321/ 070323decisionorder. pdf. 317. See, e. g., United Real Estate Brokers of Rockland, Ltd., Dkt.