Nearly a year and a half into his tenure as the National Association of Realtors’ general counsel, Jonathan Waclawski says the trade group’s litigation docket — “a complete mess for some time” — is on its way to being under control.
By NAR’s accounting, the past year has produced a genuine winning streak.
The association’s $52.25 million opt-in settlement in the Tuccori buyer-commission case won preliminary approval on May 26 and heads to a final approval hearing on Nov. 2, Waclawski told Inman — a deal that, if it survives the objectors he expects, would close the book on the cooperative compensation cases that have consumed the association since Sitzer | Burnett.
Courts have dismissed a string of MLS-access and “three-way agreement” lawsuits at the motion-to-dismiss stage, NAR secured a partial stay of discovery in the Batton buyer case in April and — “knock on wood,” Waclawski said — the association hasn’t been served with a new lawsuit recently.
The wins are real, but not all of them are final. And NAR remains in a “risk-off” stance, intentionally taking a back seat to some of the industry’s most pressing issues in an effort to avoid future litigation.
Waclawski spoke with Inman about his time in charge of NAR’s legal team, changes he’s overseen and what risk-off means next. Below is the conversation, edited for length and clarity.
The Tuccori settlement was a major win on the buyer side. How do you feel about the settlement NAR reached in that case?
I think we approached our buyer’s-side class action litigation in a very purposeful way. We were named in the Batton case. We wound up settling through the opt-in process in the Tuccori case. It was a very dynamic situation at the time, with different defendants settling in different ways.
Remember, we announced our settlement on [April 10, 2026], and I think the opt-in period closed on the 13th of April, so we took the maximum amount of time and facilitated, I think, the best possible outcome for us and those left in the industry that we could cover — legally could cover.
A couple of things to point out. Dollar value: significant, I mean, the $52.25 million, but that’s over time, and it’s backloaded so that we’re maximizing our ability to have liquidity and a cash-flow-positive scenario in light of the ongoing settlement obligations we have with Sitzer | Burnett.
We maximized our ability to cover other released parties — a much broader release than we were able to negotiate in the Sitzer | Burnett settlement. So I think, all things considered, net positive. It’s not over the finish line yet, so we will continue to argue why the settlement is the best for the industry, but we feel good about it.
Where do things stand right now?
The Tuccori settlement has to first go through a final hearing, and the judge just set that final hearing date for Nov. 2. We will have an opportunity, as will the objectors — and there will be objectors to the settlement — to make their cases orally before the court, and shortly thereafter the court will rule whether the settlement should proceed.
If that process plays out and NAR is successful — assuming there’s an appeal, and NAR wins it — is that it for the commission cases? The seller side has been settled, the buyer side has been settled. Am I missing anything?
That will cover the cooperative compensation cases, yes.
Any other victories from the past year and a half that I might not have gotten into?
Just a quick reminder: The Sitzer | Burnett settlement is still on appeal. We had oral arguments in January. We felt that went really well for those supporting the settlement, including the plaintiffs, oddly enough — we were on the same side in defending the settlement.
We expect, hopefully, a decision supporting the settlement in the not-too-distant future, another chapter of certainty in this litigation landscape.
We were successful at the close of last year in the REX lawsuit, so that closed out. The Homie case in Utah — the antitrust allegation that we were part of a group boycott against discount brokerages — continues to be on appeal in the 10th Circuit, but we had oral arguments in May, and we feel good about that case, too.
Altogether, we were able to clear off the docket some of the lower-hanging-fruit litigation items that were less newsworthy, and that’s really been a focus: Get this litigation docket under control. It’s been a complete mess for some time. The tide has slowed. We haven’t gotten any new lawsuits recently — knock on wood, wherever I find it — and we think that will continue.
Before your time as general counsel, the Supreme Court declined to hear NAR’s appeal in the DOJ investigation. Has it been reopened? Anything you can talk about as far as DOJ’s interest in NAR?
It has not been reopened, and I really can’t touch on anything in the DOJ space that’s not public, and there hasn’t been much public lately, so I guess you could read into that what you will.
There have been various “three-way agreement” lawsuits, and NAR seems to have been successful with those as well. Why do you think that is?
I’ve been referring to them, too, as three-way agreement, but also MLS access cases. Most of them are alleging both things: Why do I have to be part of all three tiers of the Realtor association family, and also, why do I have to be a Realtor to have access to the MLS? There’s been a host of those cases. We’ve been successful in a lot of them and believe we will continue to be successful.
First and foremost, there’s substantial case law justifying the way we exist as an association, and courts have upheld that associational framework for many, many, many years. Speaking to MLS access, too, I think we’ve shown and proven that it isn’t a mandate. It’s a choice, and associations can make the choice to connect their MLS to Realtor membership if done appropriately, and those that are being challenged have been doing it appropriately.
Now, mind you, these cases so far have all been dismissed at the motion-to-dismiss level, meaning we haven’t gotten to the merits of arguing legally some of the facts in these matters. Antitrust cases are hard to plead, and many of these plaintiffs are finding that they’re not able to even reach the pleading standard that the law requires. So we think that’s going to continue.
Clear Cooperation still comes to mind, even though people aren’t talking CCP anymore — they’re talking pre-marketed listings. Is the guidance for MLSs under your purview, and what are you advising on pre-marketed listings and delayed marketing?
I’m personally not advising MLSs at all, but to the extent that there were questions regarding CCP, our answer is: CCP still exists. It’s still in our rules. And in fact, we’re litigating a case involving an antitrust allegation against CCP. That’s the PLS case in California. So we’re making arguments in that case that are consistent with our current rule structure.
There are a host of different options for marketing properties that the current rules provide for. There are multiple listing options for sellers, and the CCP rule itself exempts office exclusives, so long as they’re done in the way that they’re supposed to.
Different brokerages seem to be approaching the term “office exclusive” differently, whether it’s literally only within your brokerage or whether NAR allows office exclusives to be shared with agents outside the brokerage. Can you set the record straight? What is NAR’s definition of an office exclusive?
Our rules define that, and the guidance materials that we’ll provide you have that definition in them.
You’ve also restructured the legal team since taking the role. What kinds of changes internally?
The legal team of the past had a chief legal officer and chief member experience officer — that was one position. In retrospect, that omnibus role presented certain challenges to preserving privilege and confidences.
Purposefully, my role is the legal role — head of legal, and head of legal only — that reports directly to the CEO. And we have structurally elevated the second-in-command: We now have three vice president and associate general counsel-level positions — association legal affairs, which services our key governance committees; litigation; and trademark and brand protection.
What do you hope is on the agenda in November at NXT?
It’s too early to talk details about NXT. But generally speaking, there’s still work to be done with regard to our MLS rules. I think there’s broad consensus that there are a host of issues that continue to be debated, and that there’s a potential opportunity to provide clarity in our rules.
I will let the advisory board and MLS committee home in on what exactly those may be, but that, I would assume, would be part of the conversation at NXT.
