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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" alternative, where, in addition to noting the home in the MLS and positioning it on several sites, he offers the seller support once the purchaser is discovered. In addition to the flat fee rate of $495 paid sometimes of listing, the "flat-fee plus" alternative requires the seller also to pay $1,500 at closing.

at 68 (explaining the option). 280. In an address at the beginning of the Workshop, (then Acting) Assistant Attorney General Of The United States Thomas Barnett observed that minimum-service laws and regulations can be viewed as no different from states passing a guideline that says: "When I stroll into McDonald's and buy a hamburger, I'm informed that I likewise need to purchase some french fries, because the state has decided that it may be misleading or misleading or bad if I just got the hamburger, paid for it and didn't understand I wasn't going to get the french fries." Barnett, Tr.

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

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Baker, member House Comm. on Financial Providers), 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 versus traditional "representatives out there that offer little or no worth to the transaction."). 282. See Lewis, Tr. at 179 (" While some consumers might be sophisticated enough to represent themselves in some or all of the actions of a deal, most are not.").

22, 2005, readily available at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (estimating Texas Association of Realtors declaring that minimum-service guidelines would prevent consumer confusion); Peter G. Baker, Working With a Broker: Should You Anticipate Less?, REALTY TIMES, Apr. 11, 2006, available at http://realtytimes. com/rtcpages/20060411 _ hirebroker. htm (" [Government companies] argue that with disclosures and waivers customers ought to have the ability wesley financial bbb to refuse any brokerage service or commitment.

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We do not, for instance, enable customers to conserve money by employing physicians who cut costs by not sanitizing surgical instruments or cleaning their hands."). 283. See Darryl W. Anderson, Minimum-Service Requirements in Realty Brokerage: A Response to Maureen K. Ohlhausen, ANTITRUST SOURCE, Jan. 2006, at 3-4 (arguing that minimum-service requirements are procompetitive since they foster rate settlements prior to getting in a representation agreement over what a fee-for-service broker will charge for all the services required by law).

See, e. g., GAO REPORT, supra note 3, at 16. 285. Thorburn, Tr. at Additional reading 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 grievances versus restricted service brokers were minimal or nonexistent. The survey is offered at http://www.

htm. 288. Our evaluation of fee-for-service broker sites reveals that consumers appear to have ready access to prices that fee-for-service brokers charge for extra services beyond the MLS-only choice in advance of participating in a legal relationship. This finding weakens an essential condition for the hold-up theory to be plausible that customers only discover the costs for additional services after they have participated in an unique listing agreement.

Ohlhausen, Minimum-Service Requirements in Realty Brokerage: A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (going over different theoretical and empirical reasons why the hold-up theory does not appear to apply to fee-for-service brokerage). 289. See Farmer, Tr - how to get a real estate license in ohio. at 71-72. 290. Kunz, Tr. at 82-83. See also Perriello, Tr. at 152 (speaking for Cendant, and specifying millenial couple that "we believe that customers.

need to be able to pick their service designs as well as the provider of those services, whether they be restricted service or full-service"). 291. Sambrotto, Tr. what is the difference between a real estate agent and a broker. at 116. 292. Farmer, Tr. at 72. 293. PATRICK WOODALL & STEPHEN BROBECK, CUSTOMER FEDERATION OF AMERICA, HOW THE PROPERTY 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., Property Agency Reform: Fulfilling the Requirements of Purchasers, Sellers, and Brokers, 25 PROPERTY L.J. 345, 350 (1997) (keeping in mind 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 concerns worrying the fulfillment of fiduciary tasks. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Property Associations Base 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 settlements carried out by a licensee pursuant to the permission will not create or suggest a firm relationship between that licensee and the customer of that special broker."). 303. VA CODE 54. 1-2132( C) (reliable July 1, 2007) (" A licensee engaged by a seller in a realty transaction may, unless restricted by law or the brokerage relationship, supply assistance to a buyer or potential 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. Real Estate Multi-List, 629 F. 2d 1351, 1374 (5th Cir. 1980) (" [W] hen broker participation in the [MLS] is high, the service itself is financially successful and competition from other listing services is lacking, guidelines which welcome the unjustified exemption of any broker need to be found 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 conversation of the different personal litigation involving alleged MLS-related restraints is beyond the scope of this Report.

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For a discussion of special firm contracts and other kinds of listing arrangements, 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 Services, 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., Information and Property Providers, LLC, FTC File No (what does under contract mean in real estate). 061-0087, at 6 (2006) (analysis to aid public remark), readily available at http://www.

pdf. 314. See, e. g., Austin Bd. of Realtors, FTC Dkt. No. C-4167, at 17 (2006) (problem), offered 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), offered at http://www. ftc.gov/ os/adjpro/d9321/ 070323decisionorder. pdf. 317. See, e. g., United Real Estate Brokers of Rockland, Ltd., Dkt.