14.44 Reducing Antitrust Liability

When discussing commission rates with clients, licensees should use language clearly indicating that their firm sets their commission rates unilaterally and independently of competitors.
Any licensee who finds himself/herself in the midst of a prohibited price fixing or commission rates discussion with competitors should take immediate steps to disavow any connections with the discussion. Mere silence may infer that the licensee participated in a price fixing conspiracy!
Any preprinted forms should not contain any predetermined commission rates, listing periods, automatic renewal clauses, or predetermined protection periods. All of these items should be addressed by blanks that are to be filled in as negotiated between the licensee and client.
NEVER use the following dangerous words and phrases. These are examples of words or phrases that would permit a judge or jury to find that a licensee had engaged in illegal antitrust activity. (Note: These phrases are taken from the Antitrust and Real Estate Compliance Program for REALTORS®.)

"No one else will cooperate unless you accept the listing on these terms."
"Before you decide to list with XYZ Realty, you should know that because they are a discount broker, other REALTOR® board members would not show their listings."
"This is the rate every firm charges."
"If you valued your services as a professional, you wouldn’t cut your commissions."
"Before you list with XYZ Realty, you should know that nobody works on their listings"
"I would like to lower the commission rate, but the board, as a rule.... "
"This is the rate that everyone charges."
"The MLS will not accept less than a 120-day listing."
"I would like to lower the commission, but no one else in the MLS will show your house unless the commission is X%."

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