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278. See HUD REPORT, supra note 201. 279. One panelist who is a fee-for-service broker explains this as his "flat-fee plus" option, where, in addition to noting the home in the MLS and placing it on a number of websites, he offers the seller support once the buyer is found. In addition to the flat cost price of $495 paid at time of listing, the "flat-fee plus" choice needs the seller likewise to pay $1,500 at closing.

at 68 (explaining the choice). 280. In an address at the start of the Workshop, (then Acting) Assistant Chief Law Officer Thomas Barnett observed that minimum-service laws and policies can be considered as no various from states passing a guideline that says: "When I walk into McDonald's and order a hamburger, I'm told that I also need to buy some french fries, because the state has actually chosen that it may be misleading or misleading or bad if I only got the hamburger, spent for it and didn't realize I wasn't going to get the french fries." Barnett, Tr.

Likewise, at a current Congressional hearing on competitors in the property brokerage market, Representative Baker analogized minimum-service laws and policies to needing a customer to have his or her entire house painted when he or she only wanted the deck painted. See Hearing, supra note 1, at 30 (statement of Rep.

Baker, member House Comm. on Financial Services), readily available at http://frwebgate. access.gpo. gov/cgi-bin/getdoc. cgi?dbname= 109_house_hearings & docid= f:31541. pdf. 281. See Farmer, Tr. at 105 (noting that he competes against standard "agents out there that offer little or no value to the deal."). 282. See Lewis, Tr. at 179 (" While some consumers might be sophisticated adequate to represent themselves in some or all of the actions of a deal, the majority of are not.").

22, 2005, available at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (quoting Texas Association of Realtors claiming that minimum-service rules would prevent customer confusion); Peter G. Baker, Hiring a Broker: Should You Expect Less?, REALTY TIMES, Apr. 11, 2006, available at http://realtytimes. com/rtcpages/20060411 _ hirebroker. htm (" [Federal government companies] argue that with disclosures and waivers consumers must be able to refuse any brokerage service or commitment.

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We do not, for instance, allow consumers to save money by hiring physicians who cut expenses by not decontaminating surgical instruments or cleaning their hands."). 283. See Darryl W. Anderson, Minimum-Service Requirements in Property Brokerage: A Reaction to Maureen K. Ohlhausen, ANTITRUST SOURCE, Jan. 2006, at 3-4 (arguing that minimum-service requirements are procompetitive because they promote cost negotiations before going into a representation agreement 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 response to an FTC survey, participants from Colorado, North Dakota, Vermont, and Washington noted that complaints versus restricted service brokers were very little or nonexistent. http://tituslrot176.cavandoragh.org/10-simple-techniques-for-how-to-get-a-real-estate-license-in-florida The survey is available at http://www.

htm. 288. Our review of fee-for-service broker sites reveals that customers appear to have ready access to costs that fee-for-service brokers charge for additional services beyond the MLS-only option in advance of participating in a contractual relationship. This finding weakens an essential condition for the hold-up theory to be possible that customers just discover the costs for extra services after they have actually participated in an exclusive listing arrangement.

Ohlhausen, Minimum-Service Requirements Click here to find out more in Real Estate Brokerage: A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (discussing various theoretical and empirical reasons that the hold-up theory does not appear to apply to fee-for-service brokerage). 289. See Farmer, Tr - what is cam in real estate. at 71-72. 290. Kunz, Tr. at 82-83. See also Perriello, Tr. at 152 (speaking for Cendant, and specifying that "our company believe that customers.

ought to be able to choose their service models along with the supplier of those services, whether they be minimal service or full-service"). 291. Sambrotto, Tr. what are cc&rs in real estate. at 116. 292. Farmer, Tr. at 72. 293. PATRICK WOODALL & STEPHEN BROBECK, CONSUMER FEDERATION OF AMERICA, HOW THE REALTY CARTEL DAMAGES 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., Realty Agency Reform: Meeting the Requirements of Purchasers, Sellers, and Brokers, 25 PROPERTY L.J. 345, 350 (1997) (noting that company relationships can be created by actions).

Whatley, Tr. at 48. 299. Preventing fee-for-service listings without disclosure to purchasers, nevertheless, may raise problems concerning the satisfaction of fiduciary duties. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Real Estate Associations Stand On MLS-Entry-Only Listings, REALTY TIMES, Feb. 24, 2005, readily available at http://realtytimes. com/rtapages/20050224 _ mlsentryonly. htm. 302. OHIO CODE 4735.

18 of the Revised Code and negotiations carried out by a licensee pursuant to the authorization will not produce or indicate an agency 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 property deal may, unless forbidden by law or the brokerage relationship, supply support to a buyer or possible buyer by performing 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 Homepage itself is financially successful and competition from other listing services is doing not have, rules which welcome the unjustified exclusion of any broker ought to 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 various private lawsuits involving alleged MLS-related restraints is beyond the scope of this Report.

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For a conversation of unique company agreements and other kinds of noting agreements, 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; Info and Real Estate Providers, LLC, FTC File No.

051-0065; Williamsburg Location 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 Real Estate Solutions, LLC, FTC File No (what is a real estate appraiser). 061-0087, at 6 (2006) (analysis to aid public comment), available at http://www.

pdf. 314. See, e. g., Austin Bd. of Realtors, FTC Dkt. No. C-4167, at 17 (2006) (grievance), available at http://www. ftc.gov/ os/caselist/0510219/ 0510219AustinBoardofRealtorsComplaint. pdf. 315. Id. at 27. 316. See MiRealSource, Inc., FTC Dkt. No. 9321 (2007) (choice and order), available at http://www. ftc.gov/ os/adjpro/d9321/ 070323decisionorder. pdf. 317. See, e. g., United Realty Brokers of Rockland, Ltd., Dkt.