278. See HUD REPORT, supra note 201. 279. One panelist who is a fee-for-service broker describes this as his "flat-fee plus" alternative, where, in addition to listing the house in the MLS and placing it on a number of sites, he offers the seller support once the buyer is discovered. In addition to the flat charge price of $495 paid at time of listing, the "flat-fee plus" choice requires the seller likewise to pay $1,500 at closing.

at 68 (explaining the choice). 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 seen as no various from states passing a guideline that says: "When I stroll into McDonald's and purchase a hamburger, I'm told that I also need to buy some french fries, since the state has chosen that it might be misleading or deceptive or bad if I only got the hamburger, paid for it and didn't understand I wasn't going to get the french fries." Barnett, Tr.

Likewise, at a current Congressional hearing on competition in the real estate brokerage industry, Representative Baker analogized minimum-service laws and guidelines to requiring a consumer to have his or her whole house painted when she or he just wanted the patio painted. See Hearing, supra note 1, at 30 (statement of Rep.

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

22, 2005, readily available at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (pricing quote Texas Association of Realtors declaring that minimum-service rules would prevent consumer confusion); Peter G. Baker, Employing a Broker: Should You Anticipate Less?, REAL ESTATE TIMES, Apr. 11, 2006, available at http://realtytimes. com/rtcpages/20060411 _ hirebroker. htm (" [Government agencies] argue that with disclosures and waivers consumers should be able to refuse any brokerage service or obligation.

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We do not, for example, enable customers to save cash by employing physicians who cut costs by not disinfecting surgical instruments or washing 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 since they foster price negotiations prior to entering 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 action to an FTC questionnaire, participants from Colorado, North Dakota, Vermont, and Washington noted that grievances versus restricted service brokers were minimal or nonexistent. The questionnaire is available at http://www.

htm. 288. Our review of fee-for-service broker sites exposes that customers appear to have timeshare season colors ready access to prices 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 a required condition for the hold-up theory to be possible that consumers just discover the rates for additional services after they have entered into a special listing agreement.

Ohlhausen, Minimum-Service Requirements in Property Brokerage: A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (going over different theoretical and empirical reasons the hold-up theory does not appear to use to fee-for-service brokerage). 289. See Farmer, Tr - how to generate leads in real estate. at 71-72. get out of timeshare lawyer 290. Kunz, Tr. at 82-83. See also Perriello, Tr. at 152 (speaking for Cendant, and mentioning that "we believe that customers.

need to have the ability to pick their service designs as well as the company of those services, whether they be minimal service or full-service"). 291. Sambrotto, Tr. how to buy commercial real estate. at 116. 292. Farmer, Tr. at 72. 293. PATRICK WOODALL & STEPHEN BROBECK, CUSTOMER FEDERATION OF AMERICA, HOW THE REAL ESTATE CARTEL HARMS 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: Satisfying the Requirements of Buyers, Sellers, and Brokers, 25 PROPERTY L.J. 345, 350 (1997) (keeping in mind that firm relationships can be created by actions).

Whatley, Tr. at 48. 299. Avoiding fee-for-service listings without disclosure to purchasers, however, http://edwintirt610.evenweb.com/some-ideas-on-how-do-i-get-my/some-known-details-about-what-is might raise problems worrying the fulfillment of fiduciary duties. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Property Associations Base On MLS-Entry-Only Listings, REAL ESTATE TIMES, Feb. 24, 2005, offered at http://realtytimes. com/rtapages/20050224 _ mlsentryonly. htm. 302. OHIO CODE 4735.

18 of the Revised Code and settlements performed by a licensee pursuant to the authorization shall not produce or imply a firm relationship in between that licensee and the client of that special broker."). 303. VA CODE 54. 1-2132( C) (effective July 1, 2007) (" A licensee engaged by a seller in a property deal may, unless restricted by law or the brokerage relationship, offer help to a buyer 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 financially successful and competition from other listing services is lacking, guidelines which welcome the unjustified exemption of any broker ought 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 discussion of the different personal lawsuits including alleged MLS-related restraints is beyond the scope of this Report.

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For a conversation of exclusive company contracts 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 STUDY, supra note 38, at 29-30. 312. Austin Bd. of Realtors, FTC Dkt. No. C-4167; Information and Realty Providers, 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 Real Estate Providers, LLC, FTC File No (how to become a real estate broker in florida). 061-0087, at 6 (2006) (analysis to aid public remark), available at http://www.

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