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

at 68 (explaining the option). 280. In an address at the beginning of the Workshop, (then Performing) Assistant Chief Law Officer Thomas Barnett observed that minimum-service laws and guidelines can be considered as no various from states passing a regulation that says: "When I stroll into McDonald's and buy a hamburger, I'm told that I also have to buy some french fries, because the state has 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.

Similarly, at a current Congressional hearing on competitors in the genuine estate brokerage industry, Representative Baker analogized minimum-service laws and guidelines to requiring a consumer to have his or her entire house painted when she or he only wanted the deck painted. See Hearing, supra note 1, at 30 (declaration of Rep.

Baker, member Home Comm. on Financial Providers), offered at http://frwebgate. access.gpo. gov/cgi-bin/getdoc. cgi?dbname= 109_house_hearings & docid= f:31541. pdf. timeshare compliance 281. See Farmer, Tr. at 105 (keeping in mind that he competes versus conventional "agents out there that offer little or no worth to the transaction."). 282. See Lewis, Tr. at 179 (" While some customers might be advanced adequate to represent themselves in some or all of the actions of a deal, most are not.").

22, 2005, available at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (pricing estimate Texas Association of Realtors claiming that minimum-service rules would avoid customer confusion); Peter G. Baker, Working With 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 ought to have the ability to refuse any brokerage service or responsibility.

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We do not, for instance, enable consumers to save cash by working with medical professionals who cut expenses by not disinfecting surgical instruments or washing their hands."). 283. See Darryl W. Anderson, Minimum-Service Requirements in Realty Brokerage: A Reaction to Maureen K. Ohlhausen, ANTITRUST SOURCE, Jan. 2006, at 3-4 (arguing that minimum-service requirements are procompetitive since they foster price settlements prior to getting in a representation arrangement 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 96. 286. Farmer, Tr. at 73. 287. In addition, in action to an FTC questionnaire, respondents from Colorado, North Dakota, Vermont, and Washington kept in mind that complaints against minimal service brokers were very little or nonexistent. The survey is offered at http://www.

htm. 288. Our evaluation of fee-for-service broker sites exposes that customers appear to have all set access to rates that fee-for-service brokers charge for additional services beyond the MLS-only choice in advance of participating in a contractual relationship. This finding weakens a required condition for the hold-up theory to be plausible that customers just discover the prices for extra services after they have actually entered into a special listing agreement.

Ohlhausen, Minimum-Service Requirements in Real Estate Brokerage: A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (discussing various theoretical and empirical reasons why the hold-up theory does not appear to use to fee-for-service brokerage). 289. See Farmer, Tr - how to become a commercial real estate agent. at 71-72. 290. Kunz, Tr. at 82-83. See likewise Perriello, Tr. at 152 (speaking for Cendant, and mentioning that "we believe that customers.

should have the ability to choose their service designs in addition to the provider of those services, whether they be limited service or full-service"). 291. Sambrotto, Tr. how much do real estate agents make a year. at 116. 292. Farmer, Tr. at 72. 293. PATRICK WOODALL & STEPHEN BROBECK, CUSTOMER FEDERATION OF AMERICA, HOW THE REAL ESTATE 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 Company Reform: Meeting the Needs of Purchasers, Sellers, and Brokers, 25 PROPERTY L.J. 345, 350 (1997) (noting that agency relationships can be created by actions).

Whatley, Tr. at 48. 299. Preventing fee-for-service listings without disclosure to buyers, however, might raise issues concerning the fulfillment of fiduciary duties. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Realty Associations Stand 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 Modified Code and negotiations carried out by a licensee pursuant to the authorization will not create or imply a company relationship between that licensee and the client of that special broker."). 303. VA CODE 54. 1-2132( C) (efficient July 1, 2007) (" A licensee engaged by a seller in a real estate transaction may, unless forbidden by law or the brokerage relationship, offer assistance to a purchaser or possible purchaser 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. 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 economically successful and competitors from other listing services is lacking, guidelines which welcome the unjustified exemption of any broker must 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 different private lawsuits involving declared MLS-related restraints is beyond the scope of this Report.

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For a discussion of unique company agreements and other kinds of noting arrangements, see supra Chapter I.A. 2. 310. See Farmer, Tr. at 74-75; Sambrotto, Tr. at 90. 311. NAR 2005 STUDY, supra note 38, at 29-30. 312. Austin Bd. of Realtors, FTC Dkt. No. C-4167; Info http://edwintirt610.evenweb.com/some-ideas-on-how-do-i-get-my/some-known-details-about-what-is and Genuine 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 can i do with a real estate license). 061-0087, at 6 (2006) (analysis to aid public remark), offered at http://www.

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