Professor Tanya Monestier sold her Rhode Island house in 2022 and got a front-row seat to the very practices the NAR settlement was supposed to eliminate. Her 132-page objection to the $418 million settlement, filed in federal court, pulls no punches: "The implementation of the settlement has been a disaster."
She's not wrong. The settlement that took effect in August 2024 was designed to end two specific anticompetitive practices—steering and commission collusion—but over a year later, both problems persist in new forms.
Ever wonder why some properties that seem well priced, and in good shape linger on the market for months while other properties fly off the market in overbids? Who gets to look at the elusive, "off market (not on MLS) deals" that never get to market?
It's called steering.
What Steering Actually Looks Like
Steering isn't theoretical. It's a buyer's agent searching the MLS for listings with 3% commission offers instead of 2.5%, then building their showing schedule around the higher-paying properties. The agent tells their client they're seeing "the best homes in your price range," but they're really seeing the best-paying homes for the agent.
Steering never left; it just got smarter. Buyers' agents now call listing agents before showings to ask about compensation, using "courtesy checks" as cover for fee-shopping. The original lawsuits alleged that NAR's operating rules incentivized buyer's brokers to prioritize homes offering higher commissions, and those same networks now share commission details off the books.
The settlement banned displaying buyer broker compensation on MLS, but it didn't account for how agents communicate. Text groups, social media chats, and referral networks have become the new MLS for commission data. It's collusion without the paper trail.
We are not amused
And quietly running that game? The old girls' network—informal alliances where agents, who dominate this industry, share commission intel with a wink and a nod, as regulators attempt to rein them in. These networks have simply adapted, moving conversations from MLS platforms to text chains and coffee shops.
NAR argues that its settlement agreement changes "eliminate any theoretical steering" by requiring signed buyer representation agreements before home tours.
However, this confidence may be misplaced, as NAR president Kevin Sears acknowledged that agents and their clients can amend their representation agreement, opening up possibilities for agents to change compensation if sellers offer higher compensation.
I hate to ask...
I have to admit when “the changes” occurred I had to learn some new behaviors stat. The need to explain buyer’s compensation was the first and the second was needing to call listing agents to ask if their clients were offering compensation. “I hate to ask but…” or, “this feels so mercenary but…”
Despite MLS restrictions on displaying compensation offers, informal communication channels have become the new marketplace where commission information flows freely. Agents have simply moved their conversations from formal MLS platforms to text chains and group message or quick chats; agents started picking up their phones again.
The most sophisticated operators rely on referral relationships—agents who regularly work together have developed their own shorthand for discussing fees, using coded language that sounds perfectly innocent to outsiders. Meanwhile, social media groups that started as professional networking forums have evolved into quasi-professional marketplaces for sharing "market intelligence," where commission sharing practices continue despite warnings from industry leaders about the associated legal risks. It's steering with a smile and a digital paper trail that regulators struggle to track.
The Collusion That Continues
The original lawsuit alleged that NAR conspired with major brokerages to maintain artificially high commission rates through rules that required sellers to offer buyer agent compensation through the MLS. This created a system where commission rates remained sticky at 5-6% total, split between listing and buyer agents.
In October 2023, a federal jury found NAR and brokerages liable for $1.8 billion in damages, which could have risen to $5.4 billion with punitive damages. Rather than appeal, NAR agreed to settle for approximately $418 million over four years and implement policy changes, though NAR's interim CEO Nykia Wright maintained they denied any wrongdoing.
Why the Settlement Failed
The settlement required two key changes: buyers must sign representation agreements before viewing homes, and MLS platforms cannot display compensation offers. These changes addressed the mechanism of steering and collusion, not their underlying incentives.
Buyers now sign agreements stating their agent will receive "X flat fee, X percent, X hourly rate"—but those rates haven't decreased meaningfully. Sellers still face pressure to offer competitive compensation if they want agents to show their properties. The collusion simply moved from formal MLS displays to informal communication networks.
Why did the settlement fail? It targeted mechanics, not incentives. Agents still get paid based on transaction size, not client outcomes. And the old girls' network—built on trust and reciprocity—is better at navigating shadows than any rulebook.
The bottom line: until compensation aligns with value, not volume, steering and collusion will thrive. The network isn't amused by the settlement, but it's certainly not stopping.
