United Real Estate's NAR Non-Membership Defense: "We Were Never Part of This"

By Frances Flynn Thorsen

When United Real Estate filed its answer to the Batton 2 second amended complaint on April 28, 2026, it made a striking admission: it is not, and never has been, a member of the National Association of REALTORS®.

That single sentence — buried in a list of affirmative defenses — may be the most consequential thing United has said in this entire litigation. Here's why.

The Batton 2 Theory of Liability

To understand why United's non-membership matters, you need to understand how the Batton 2 plaintiffs built their case.

The plaintiffs — buyers who paid commissions between 2015 and 2024 — allege that NAR and its affiliated brokerages conspired to fix buyer-broker commissions through the Cooperative Compensation Rule (also called the Buyer-Broker Commission Rule). Under that rule, sellers' agents were required to offer a commission to buyers' agents as a condition of listing on any MLS affiliated with NAR. Plaintiffs say this artificially inflated commissions by removing competitive pressure on buyer-broker fees.

The conspiracy theory requires two things: (1) the defendants agreed to follow the rule, and (2) they actually followed it in ways that harmed buyers.

NAR membership is the primary mechanism through which brokerages agreed to follow the rule. NAR members must follow the Code of Ethics and NAR's MLS rules. Non-members are not bound by those rules.

United's Admission and What It Means

United Real Estate's April 28 filing states plainly that it is not a NAR member. This is not a technicality — it is a direct attack on the first element of the conspiracy theory.

If United never agreed to follow NAR's Cooperative Compensation Rule, the plaintiffs must find another way to connect United to the alleged conspiracy. That is harder than it sounds.

The plaintiffs' likely response will be one of three arguments:

1. United followed NAR rules through MLS participation. Even non-NAR members can access NAR-affiliated MLSs through subscriber agreements. Those agreements often incorporate MLS rules — including commission-sharing requirements — by reference. Plaintiffs will argue that United's MLS participation made it a de facto participant in the conspiracy regardless of formal NAR membership.

2. United benefited from the conspiracy. Even if United didn't agree to the rule, it benefited from artificially inflated commissions. Some courts have allowed conspiracy claims against non-members who knowingly benefited from and participated in a price-fixing scheme.

3. United's agents were NAR members individually. Individual agents at United may hold NAR memberships even if the brokerage does not. Plaintiffs may argue that the conspiracy operated at the agent level, not the brokerage level, making United vicariously liable for its agents' participation.

How Strong Is the Defense?

United's non-membership defense is stronger than it looks on paper — but it is not a silver bullet.

The defense is strongest on the formal conspiracy theory. If the plaintiffs need to prove that United expressly agreed to follow NAR's rules, the absence of a membership agreement is powerful evidence that no such agreement existed.

The defense is weakest on the MLS participation theory. Courts in the Sitzer/Burnett and Moehrl cases have already found that MLS participation can substitute for formal NAR membership as a basis for conspiracy liability. United will need to show that its MLS subscriber agreements did not incorporate the Cooperative Compensation Rule — a fact-intensive inquiry that will require discovery.

The defense is also complicated by United's size. United Real Estate is one of the fastest-growing independent brokerages in the country, with over 20,000 agents across 35+ states. Its scale makes it harder to argue it was a peripheral player with no meaningful role in the commission structure.

The Mirror Image of Redfin

United's non-membership defense is the structural mirror of Redfin's withdrawal defense — and comparing the two is instructive.

• RedfinUnited Real Estate/NAR membership Was a member; resigned in 2023Has never been a member.

• Core defense "We left before the damages period""We were never part of it".

• Key legal doctrine Withdrawal from conspiracyNon-participation in conspiracy.

• Strongest argument Resignation predates damagesNo membership agreement exists.

• Weakest point Benefited from rule while a memberMLS participation may substitute for membership

• Settlement risk Moderate — partial liability possibleLower — but not zero

Both defenses attack the same element of the plaintiffs' case: the agreement to participate in the alleged conspiracy. But they attack it from opposite directions. Redfin says it agreed and then withdrew. United says it never agreed at all.

If either defense succeeds at the summary judgment stage, it could create a template for other non-member or former-member brokerages to follow — potentially reshaping the defendant pool in Batton 2 and similar cases.

What Happens Next

United's non-membership defense will not be resolved quickly. The next major procedural step is the June 2 joint status report, which will tell us whether the parties are moving toward discovery or another round of motions.

If the case proceeds to discovery, expect the plaintiffs to subpoena United's MLS subscriber agreements, internal communications about commission policies, and any correspondence with NAR or affiliated MLSs. That discovery will either confirm or undermine the non-membership defense.

The May 27 Weichert mediation update is also worth watching. If Weichert settles directly with the plaintiffs, it will increase pressure on the remaining defendants — including United — to consider their own settlement options rather than litigate through discovery.

The Bottom Line

United Real Estate's NAR non-membership defense is a serious legal argument that could significantly reduce or eliminate its liability in Batton 2. It is not a guaranteed win — MLS participation and agent-level membership are real vulnerabilities — but it gives United a credible path to summary judgment that most other defendants in this case do not have.

Watch the June 2 joint status report for the first signal of how the plaintiffs plan to respond.

This post is part of the Batton 2 Defenses Series, which examines the affirmative defenses filed by each defendant in the Batton 2 buyers' commission antitrust lawsuit. Previous installment: Redfin's "We Already Left" Defense.

For informational purposes only. Not legal advice.

Comparing the Three Batton 2 Defenses

For context, here is how all three defendants' strategies compare side by side. This table also appears in Part 3: eXp Realty Is Fighting Batton 2 On Three Fronts.

Continue the Series

This post is part of the Batton 2 Defenses Series — a deep dive into how each defendant is fighting the buyers' commission antitrust lawsuit.

← Previous: Part 1 of 3: Redfin's "We Already Left" Defense

Next → Part 3 of 3: eXp Realty Is Fighting Batton 2 On Three Fronts — And The Third One Isn't In The Courtroom

📚 Series Overview: The Batton 2 Defenses: A Reader's Guide — Start here if you're new to the series.

DISCLOSURE: This content is for informational and journalistic purposes regarding real estate litigation and transparency. The author is an active licensee with eXp Realty LLC; however, this report is independent of that affiliation. This article does not constitute legal advice.

Image Credit: Nano Banana