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 listing the house in the MLS and putting it on a number of sites, he provides the seller assistance once the buyer is found. In addition to the flat fee cost of $495 paid sometimes of listing, the "flat-fee plus" option needs the seller also to pay $1,500 at closing.

at 68 (explaining 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 regulations can be considered as no different from states passing a guideline that says: "When I stroll into McDonald's and order a hamburger, I'm told that I also need to purchase some french fries, because the state has chosen that it may be deceptive or misleading 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 competition in the realty brokerage industry, Representative Baker analogized minimum-service laws and regulations to needing a customer to have his/her entire house painted when she or he only wanted the patio painted. See Hearing, supra note 1, at 30 (statement of Rep.

Baker, member House Comm. on Financial Services), 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 deal little or no worth to the transaction."). 282. See Lewis, Tr. at 179 (" While some customers might be sophisticated sufficient to represent themselves in some or all of the actions of a transaction, a lot of are not.").

22, 2005, readily available at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (estimating Texas Association of Realtors claiming that minimum-service rules would avoid customer confusion); Peter G. Baker, Employing a Broker: Should You Anticipate Less?, REALTY TIMES, Apr. 11, 2006, available at http://realtytimes. com/rtcpages/20060411 _ hirebroker. htm (" [Federal government agencies] argue that with disclosures and waivers consumers should have the ability to decline any brokerage service or responsibility.

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We do not, for instance, permit customers to save cash by hiring doctors who cut costs by not sanitizing surgical instruments or cleaning their hands."). 283. See Darryl W. Anderson, Minimum-Service Requirements in Real Estate Brokerage: An Action to Maureen K. Ohlhausen, ANTITRUST SOURCE, Jan. 2006, at 3-4 (arguing that minimum-service requirements are procompetitive because they cultivate cost settlements before getting in a representation contract 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 reaction to an FTC questionnaire, participants from Colorado, North Dakota, Vermont, and Washington kept in mind that grievances against minimal service brokers were very little or nonexistent. The questionnaire is readily available at http://www.

htm. 288. Our review of fee-for-service broker websites exposes that consumers appear to have all set access to rates that fee-for-service brokers charge for extra services beyond the MLS-only choice in advance of entering into a legal relationship. This finding undermines a required condition for the hold-up theory to be plausible that consumers just learn the rates for additional services after they have participated in a special listing agreement.

Ohlhausen, Minimum-Service Requirements in Real Estate Brokerage: how to rescind a timeshare contract A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (going over various theoretical and empirical reasons that the hold-up theory does not appear to use to fee-for-service brokerage). 289. See Farmer, Tr - how to get into commercial 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.

should have the ability to pick their service designs along with the supplier of those services, whether they be limited service or full-service"). 291. Sambrotto, Tr. what is a real estate novelist. 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), offered 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 Buyers, Sellers, and Brokers, 25 REALTY L.J. 345, 350 (1997) (keeping in mind that firm relationships can be developed by actions).

Whatley, Tr. at 48. 299. Preventing fee-for-service listings without disclosure to purchasers, nevertheless, may raise concerns concerning the fulfillment of fiduciary duties. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Real Estate Associations Base On MLS-Entry-Only Listings, REAL ESTATE 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 permission shall not develop or suggest Additional resources a firm relationship in between that licensee and the client of that unique broker."). 303. VA CODE 54. 1-2132( C) (reliable July 1, 2007) (" A licensee engaged by a seller in a realty transaction may, unless forbidden by law or the brokerage relationship, offer assistance to a purchaser or prospective buyer 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 economically successful and competitors from other listing services is lacking, guidelines which welcome the unjustified exclusion of any broker must 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 discussion of the numerous private lawsuits including alleged MLS-related restraints is beyond the scope of this Report.

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For a conversation of exclusive agency 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 STUDY, supra note 38, at 29-30. 312. Austin Bd. of Realtors, FTC Dkt. No. C-4167; Information and Genuine 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., Info and Genuine Estate Providers, LLC, FTC File No (how to take real estate photos). 061-0087, at 6 (2006) (analysis to assist public comment), 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) (decision and order), offered at http://www. ftc.gov/ os/adjpro/d9321/ 070323decisionorder. pdf. 317. See, e. g., United Realty Brokers of Rockland, Ltd., Dkt.