Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
HL EXHIBIT 25
CHARLES VETTER AFFIDAVIT
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK as Administrators of )
the Estate of Winifred Berk, and PAUL )
BENJAMIN, on behalf of themselves and all ) AFFIDAVIT
others similarly situated, )
) Index No. 60767/2018
Plaintiffs, ) Hon. Linda S. Jamieson
)
vs. )
)
HOULIHAN/LAWRENCE INC., )
)
Defendant. )
)
AFFIDAVIT
Charles Vetter, being first duly swom, deposes and says:
1. My name is Charles Vetter. I am 48 years old, and I live in New Palz, New York.
2. I first began practicing as a real estate agent in New York in 2002. In order to
become a real estate agent, I had to obtain a license, which required me to complete dozens of
homs of courses that are required by the State of New York. I also had to take and pass a State-
administered test. The required license courses covered many topics related to being a real estate
agent, including agency law, license law, finance, construction and development, taxes, Fair
Housing and Fair Lending, and other similar topics. To maintain my license, I have to complete a
required number of additional continuing-education classes every two years.
3. As a real estate agent, I represented numerous sellers and buyers in real estate
transactions in New York. Sometimes I represented the seller of the home. Sometimes I
represented the buyer of the home. In every transaction, I did my best to give good advice to my
client and to provide great customer service. My goal was to make the transaction as easy as
possible for my clients and to help them to achieve their objectives.
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
4. In my experience, every real estate transaction is unique. Some home sellers are
under time pressure and want to sell as quickly as possible. Other home sellers are more patient
"perfect"
and are willing to wait for the so-called offer. Some homebuyers want to see every
house on the market and will spend months looking at properties. Other homebuyers buy the first
house they go through.
5. Positive referrals are key to becoming a successful real estate agent. When an
that-
agent successfully represents a client and that client is happy with the services provided,
client may then recommend their agent to their friends and family members who are looking for
a real estate agent. And if that client decides to sell or buy another house a few years later, a
satisfied client will often become a repeat client. I would say that the vast majority of a real
estate agent's business today comes to them based on their prior work, either in the fonn of
positive refenals from previous clients, repeat business from previous clients, or people who
have sought them out because of their good reputation built up over the years. In my opinion, if
clients were not generally happy with the services and advice that a particular real estate agent
provided, that agent would not be able to remain in this business as a successful agent.
6. Before joining Houlihan Lawrence, I worked as a real estate agent for Weicheit
Realtors in LaGrange, New York. I was a manager of its Monroe office from 2006 to 2009.
7. I first became affiliated with Houlihan Lawrence in 2009. When I first joined
Houlihan Lawrence, I worked solely as a real estate agent, which means that I was an
independent contractor who worked purely on commission. One of the things that I liked about
being a real estate agent is the freedom I had to decide how to run my business. As a real estate
agent, I generally decided how much I worked, how I marketed my services, which listings
and/or clients I wanted to accept, how many hours I wanted to work in any given day, where I
wanted to work from (i.e., from a Houlihan Lawrence office, from my home, etc.). Of course,
2
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
when I was working with a particular client or listing a particular house for sale, I always had to
be responsive to my client's needs or the needs of a potential buyer. But I generally got to decide
how I responded to those needs. From my perspective, being a real estate agent was like running
my own small business.
8. In 2013, I became a manager for Houlihan Lawrence in its LaGrange office,
which is located in Dutchess County, New York. I am cun·ently the manager of the Houlihan
Lawrence's Milbrook, LaGrange, and soon-to-launch Hudson offices. I manage approximately
110 independent contractor agents.
9. As a manager, I am an employee of Houlihan Lawrence.
10. As part of my duties as a manager, I am responsible for supervising the
administrative support staff in the office. I am also responsible for recruiting new agents to join
our office, retaining our agents (the most successful of whoni are often acruited by other
brokerage companies), keeping agents updated on developments within the real estate industry,
providing support to agents as requested, organizing office events, and assisting in resolving any
disputes between agents, among many other tasks.
11. As an office manager, I am familiar with the types of training and support
services offered by Houlihan Lawrence to its agents,
12. As a preliminary matter, all real estate training courses and materials offered by
Houlihan Lawrence to its real estate agents are optional. During my time both as an agent with
Houlihan Lawrence and an office manager, Houlihan Lawrence has never required its real estate
agents to attend any particular training. Rather, the Houlihan Lawrence training is offered as an
optional benefit of affiliation with Houlihan Lawrence.
13. In my experience, Houlihan Lawrence real estate agents receive both fonnal and
informal training from a variety of sources. First and foremost, as I stated earlier, most real estate
3
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
agents in New York have completed the State-required courses to become licensed either as a
salesperson or a broker under New York law. To maintain such a license, the agent must take
continuing education courses. In addition, most real estate agents are members of the National
Association of REALTORS®, the New York State Association of REALTORS®, and local
boards of REALTORS® (such as the Hudson Gateway Association of REALTORS®). These
associations host numerous events and gatherings throughout the course of the year, and many of
these events include presentations and training on various topics related to being a real estate
agent.
14. I understand that there is a lawsuit currently pending against Houlihan Lawrence
in the Supreme Court of New York in Westchester County and that this affidavit will be
submitted to the Court in that matter. I understand that the plaintiffs in this lawsuit allege that
Houlihan Lawrence and its agents systematically fail to obtain infonned consent from their
clients when acting as either a dual agent or a dual agent with designated salespersons.
Specifically, I understand that the plaintiffs allege that Houlihan Lawrence has imposed some
script"
type of "tmifonn such that all Houlihan Lawrence agents provide the same information to
clients about dual and designated agency when obtaining their consent. Based on my own
personal experience, I can say that these allegations are wrong.
15. As a preliminary matter, all real estate agents in New York are required to provide
their clients with a State-mandated form that describes the types of agency relationships
Form"
pennitted under New York law. I generally refer to this fonn as the "Agency Disclosure
Form." "443"
or the "443 Disclosure (The refers to the section of New York's Real Property
Law that imposes this requirement.)
I6. The Agency Disclosure Form is the primary document our agents use when
discussing dual and designated agency with my clients. The Agency Disclosure Fonn
4
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
specifically warns clients of the default position underNew York law that neither dual nor
designated agents provide undivided loyalty to their clients.
17. Based on my own personal experience and my interactions with agents as a
manager, I know that, generally, when our agents obtain consent to dual and/or designated
agency from clients, they go through the Agency Disclosure Fann with the clients. They
generally highlight the different types of agency described on the fonn, explain who they will be
representing in the transaction and in what capacity they will be acting (i.e., as a seller agent,
buyer agent, designated agent, or dual agent), and answer any questions the client may have.
18. In my experience, the conversation about the Agency Disclosure Foun varies
from one transaction to the next. Some clients ask questions about the foun; others do not. Some
clients have bought and sold homes before and have already been told about the different types
of agency; others have not. Some clients are very sophisticated with respect to real estate
transactions and fiduciary duties (for example, real estate lawyers, bankers, real estate
developers, real estate investors, etc.); others are not. Some clients ask to send the Agency
Disclosure Form and other documents to their lawyers before signing; others do not. Some
clients state that they do not need an explanation of the fonus; others want the explanation.
"script"
19. During my tenure, Houlihan Lawrence has never imposed any type of on
its agents for how to handle the Agency Disclosure Form. Instead, Houlihan Lawrence has relied
on its agents to use their own training and experience, which includes the State-mandated
training required to obtain and maintain a real estate license under New York law, when
presenting the Agency Disclosure Fonn and obtaining consent to dual and designated agency.
20. I understand that the plaintiffs in this lawsuit allege that Houlihan Lawrence has
attempted to increase the number of dual agency and designated agency transactions by requiring
agents to mischaracterize their fiducialy duties in such transactions or by mischaracterizing the
5
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
"risks"
of such transactions, Based on my own personal experience, this is not true. I have never
experienced any pressure to increase the number of dual or designated agency transactions or to
favor such transactions over non-dual agency transactions. Nor have I, as a manager, ever put
such pressure on any other agent.
21. Nor have I ever been required or encouraged by anyone at Houlihan Lawrence to
"risks"
mischaracterize my fiduciary duties or to mischaracterize the when acting as a dual or
designated agent. Nor have I ever required or encouraged any of the agents whom I manage to
"risks"
mischaracterize their fiduciary duties or to mischaracterize the of acting as a dual or
designated agent.
22. To the contrary, during my tenure, Houlihan Lawrence has always sought to
ensure that all agents present the State-required Agency Disclosure Fonn to their clients and
obtain their written, infonned consent before acting as a dual or designated agent.
23. I understand that one of the documents that the plaintiffs have focused on in this
Sheet."
case is a document entitled "Disclosure and Prompt In connection with preparing this
affidavit, I was shown a copy of the Disclosure and Prompt Sheet by counsel. Prior to the filing
of this case, I do not recall having ever seen the Disclosure and Prompt Sheet. I have never used
"script"
the Disclosure and Prompt Sheet as a for obtaining consent to dual or designated agency,
nor have I used the Disclosure and Prompt Sheet for any other purpose. The same is true for the
work I have done in my capacity as a manager-I do not recall ever having seen the Disclosure
and Prompt Sheet; and I have never required or encouraged agents in my office to use the
Disclosure and Prompt Sheet for any purpose.
24. I understand that the plaintiffs in this lawsuit have alleged that Lewis Arlt was
"guru"
Houlihan Lawrence's on dual agency and that he was somehow instrumental in Houlihan
Lawrence's supposed efforts to mischaracterize dual and designated agency relationships. Mr.
6
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
Arlt was a manager in Houlihan Lawrence's Scarsdale office for patt of the time at issue in the
lawsuit. I never worked directly with Mr. Arlt. Moreover, during my tenure with Houlihan
Lawrence, I never received any training, direction, or advice from Mr. Arlt related to dual or
designated agency.
25. As a manager, I generally do not participate in the disclosure conversations
between Houlihan Lawrence agents and their clients. Therefore, I generally do not know what
any particular agent said to any particular client when obtaining their consent to dual and/or
designated agency. I generally trust the agents who work in my office to comply with their
obligations to obtain infonned, written consent to dual and designated agency, and I do not have
any reason to think that the agents who work in my office fail to do so.
26. Prior to the filing of this lawsuit, I am not aware of any client who ever
complained about the fact that Houlihan Lawrence and its agents acted as dual or designated
agents in a particular transaction. In my experience, it is very common for the larger brokerage
companies in New York to regularly act as dual and/or designated agents. Generally, the more
agents who are affiliated with a particular brokerage company in a given area, the more likely it
is that a dual or designated agency transaction will occur because it is more likely that a potential
buyer will happen to be working with an agent affiliated with the same company as the agent
working with the seller. In other words, the more successful a real estate brokerage company is at
growing its number of agents, the more dual and designated agency transactions it will have.
27. In my experience both as an agent and a manager, it would not be a good business
practice to favor dual and designated agency transactions over non-dual agency transactions.
Successful real estate agents rely on positive referrals to grow and maintain their businesses. If
an agent were to push a seller to accept an inferior offer or a buyer to overpay for a house just
7
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
because it would result in a dual or designated agency transaction, that agent would be risking
the long-tenn value of positive referrals. In my experience, agents are unlikely to take that risk.
28. Prior to becoming affiliated with Houlihan Lawrence, I had worked as an agent
with Weichert, another brokerage company in New York. In my experience, Houlihan Lawrence
and its agents handle dual and designated agency transactions and disclosures similar to the way
that Weichert and its agents did while I was there.
29. I understand that the plaintiffs in this lawsuit allege that Houlihan Lawrence's in-
house bonus program is part of some alleged strategy to increase dual and designated agency
transactions. In all of my years as an agent and manager for Houlihan Lawrence, my offices have
never participated in an in-house bonus program.
30. I have not seen anything during my tenure at Houlihan Lawrence that leads me to
believe that Houlihan Lawrence has some kind of orchestrated strategy to increase the number of
dual and designated agency transactions that occur.
31. I am a citizen of the United States, and I am competent to give testimony in this
matter. Unless stated otherwise, the above testimony is based on my own personal knowledge.
And although counsel assisted in preparing this affidavit, I reviewed it carefully, made changes
where I thought it was appropriate, and affinn that the contents of this affidavit are true and
accurate.
8
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
Charles Vetter
Swo 1 o and s cribed before me
this day of 024.
dEAnC Cyef)a,k
NOTARY PUBLIC
SEAL
ELLEN C BREMILLER
NOTARY PUBLIC, STATE OF NEW YOliK
Registration No. 018R6202498
Qualified in Dutchess County
Commission Expires March 16, 2025
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024
Certificate of Counsel
Pursuant to Commercial Division Rule 17
I, Robert D. MacGill, counsel for Defendant, hereby certify, pursuant to
Commercial Division Rule 17, that the word count for the foregoing document, excluding
the caption, table of contents, table of authorities, and signature block, is 2507 words.
This document therefore complies with the rule that limits briefs, memoranda,
affirmations, and affidavits to 7,000 words. I certify that the Microsoft Word generated
word count for this document is 2507 words.
Dated: Indianapolis, Indiana
February 19, 2024
/s/Robert D. MacGill
Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 HL EXHIBIT 25 CHARLES VETTER AFFIDAVIT FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ) ELLYN & TONY BERK as Administrators of ) the Estate of Winifred Berk, and PAUL ) BENJAMIN, on behalf of themselves and all ) AFFIDAVIT others similarly situated, ) ) Index No. 60767/2018 Plaintiffs, ) Hon. Linda S. Jamieson ) vs. ) ) HOULIHAN/LAWRENCE INC., ) ) Defendant. ) ) AFFIDAVIT Charles Vetter, being first duly swom, deposes and says: 1. My name is Charles Vetter. I am 48 years old, and I live in New Palz, New York. 2. I first began practicing as a real estate agent in New York in 2002. In order to become a real estate agent, I had to obtain a license, which required me to complete dozens of homs of courses that are required by the State of New York. I also had to take and pass a State- administered test. The required license courses covered many topics related to being a real estate agent, including agency law, license law, finance, construction and development, taxes, Fair Housing and Fair Lending, and other similar topics. To maintain my license, I have to complete a required number of additional continuing-education classes every two years. 3. As a real estate agent, I represented numerous sellers and buyers in real estate transactions in New York. Sometimes I represented the seller of the home. Sometimes I represented the buyer of the home. In every transaction, I did my best to give good advice to my client and to provide great customer service. My goal was to make the transaction as easy as possible for my clients and to help them to achieve their objectives. FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 4. In my experience, every real estate transaction is unique. Some home sellers are under time pressure and want to sell as quickly as possible. Other home sellers are more patient "perfect" and are willing to wait for the so-called offer. Some homebuyers want to see every house on the market and will spend months looking at properties. Other homebuyers buy the first house they go through. 5. Positive referrals are key to becoming a successful real estate agent. When an that- agent successfully represents a client and that client is happy with the services provided, client may then recommend their agent to their friends and family members who are looking for a real estate agent. And if that client decides to sell or buy another house a few years later, a satisfied client will often become a repeat client. I would say that the vast majority of a real estate agent's business today comes to them based on their prior work, either in the fonn of positive refenals from previous clients, repeat business from previous clients, or people who have sought them out because of their good reputation built up over the years. In my opinion, if clients were not generally happy with the services and advice that a particular real estate agent provided, that agent would not be able to remain in this business as a successful agent. 6. Before joining Houlihan Lawrence, I worked as a real estate agent for Weicheit Realtors in LaGrange, New York. I was a manager of its Monroe office from 2006 to 2009. 7. I first became affiliated with Houlihan Lawrence in 2009. When I first joined Houlihan Lawrence, I worked solely as a real estate agent, which means that I was an independent contractor who worked purely on commission. One of the things that I liked about being a real estate agent is the freedom I had to decide how to run my business. As a real estate agent, I generally decided how much I worked, how I marketed my services, which listings and/or clients I wanted to accept, how many hours I wanted to work in any given day, where I wanted to work from (i.e., from a Houlihan Lawrence office, from my home, etc.). Of course, 2 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 when I was working with a particular client or listing a particular house for sale, I always had to be responsive to my client's needs or the needs of a potential buyer. But I generally got to decide how I responded to those needs. From my perspective, being a real estate agent was like running my own small business. 8. In 2013, I became a manager for Houlihan Lawrence in its LaGrange office, which is located in Dutchess County, New York. I am cun·ently the manager of the Houlihan Lawrence's Milbrook, LaGrange, and soon-to-launch Hudson offices. I manage approximately 110 independent contractor agents. 9. As a manager, I am an employee of Houlihan Lawrence. 10. As part of my duties as a manager, I am responsible for supervising the administrative support staff in the office. I am also responsible for recruiting new agents to join our office, retaining our agents (the most successful of whoni are often acruited by other brokerage companies), keeping agents updated on developments within the real estate industry, providing support to agents as requested, organizing office events, and assisting in resolving any disputes between agents, among many other tasks. 11. As an office manager, I am familiar with the types of training and support services offered by Houlihan Lawrence to its agents, 12. As a preliminary matter, all real estate training courses and materials offered by Houlihan Lawrence to its real estate agents are optional. During my time both as an agent with Houlihan Lawrence and an office manager, Houlihan Lawrence has never required its real estate agents to attend any particular training. Rather, the Houlihan Lawrence training is offered as an optional benefit of affiliation with Houlihan Lawrence. 13. In my experience, Houlihan Lawrence real estate agents receive both fonnal and informal training from a variety of sources. First and foremost, as I stated earlier, most real estate 3 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 agents in New York have completed the State-required courses to become licensed either as a salesperson or a broker under New York law. To maintain such a license, the agent must take continuing education courses. In addition, most real estate agents are members of the National Association of REALTORS®, the New York State Association of REALTORS®, and local boards of REALTORS® (such as the Hudson Gateway Association of REALTORS®). These associations host numerous events and gatherings throughout the course of the year, and many of these events include presentations and training on various topics related to being a real estate agent. 14. I understand that there is a lawsuit currently pending against Houlihan Lawrence in the Supreme Court of New York in Westchester County and that this affidavit will be submitted to the Court in that matter. I understand that the plaintiffs in this lawsuit allege that Houlihan Lawrence and its agents systematically fail to obtain infonned consent from their clients when acting as either a dual agent or a dual agent with designated salespersons. Specifically, I understand that the plaintiffs allege that Houlihan Lawrence has imposed some script" type of "tmifonn such that all Houlihan Lawrence agents provide the same information to clients about dual and designated agency when obtaining their consent. Based on my own personal experience, I can say that these allegations are wrong. 15. As a preliminary matter, all real estate agents in New York are required to provide their clients with a State-mandated form that describes the types of agency relationships Form" pennitted under New York law. I generally refer to this fonn as the "Agency Disclosure Form." "443" or the "443 Disclosure (The refers to the section of New York's Real Property Law that imposes this requirement.) I6. The Agency Disclosure Form is the primary document our agents use when discussing dual and designated agency with my clients. The Agency Disclosure Fonn 4 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 specifically warns clients of the default position underNew York law that neither dual nor designated agents provide undivided loyalty to their clients. 17. Based on my own personal experience and my interactions with agents as a manager, I know that, generally, when our agents obtain consent to dual and/or designated agency from clients, they go through the Agency Disclosure Fann with the clients. They generally highlight the different types of agency described on the fonn, explain who they will be representing in the transaction and in what capacity they will be acting (i.e., as a seller agent, buyer agent, designated agent, or dual agent), and answer any questions the client may have. 18. In my experience, the conversation about the Agency Disclosure Foun varies from one transaction to the next. Some clients ask questions about the foun; others do not. Some clients have bought and sold homes before and have already been told about the different types of agency; others have not. Some clients are very sophisticated with respect to real estate transactions and fiduciary duties (for example, real estate lawyers, bankers, real estate developers, real estate investors, etc.); others are not. Some clients ask to send the Agency Disclosure Form and other documents to their lawyers before signing; others do not. Some clients state that they do not need an explanation of the fonus; others want the explanation. "script" 19. During my tenure, Houlihan Lawrence has never imposed any type of on its agents for how to handle the Agency Disclosure Form. Instead, Houlihan Lawrence has relied on its agents to use their own training and experience, which includes the State-mandated training required to obtain and maintain a real estate license under New York law, when presenting the Agency Disclosure Fonn and obtaining consent to dual and designated agency. 20. I understand that the plaintiffs in this lawsuit allege that Houlihan Lawrence has attempted to increase the number of dual agency and designated agency transactions by requiring agents to mischaracterize their fiducialy duties in such transactions or by mischaracterizing the 5 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 "risks" of such transactions, Based on my own personal experience, this is not true. I have never experienced any pressure to increase the number of dual or designated agency transactions or to favor such transactions over non-dual agency transactions. Nor have I, as a manager, ever put such pressure on any other agent. 21. Nor have I ever been required or encouraged by anyone at Houlihan Lawrence to "risks" mischaracterize my fiduciary duties or to mischaracterize the when acting as a dual or designated agent. Nor have I ever required or encouraged any of the agents whom I manage to "risks" mischaracterize their fiduciary duties or to mischaracterize the of acting as a dual or designated agent. 22. To the contrary, during my tenure, Houlihan Lawrence has always sought to ensure that all agents present the State-required Agency Disclosure Fonn to their clients and obtain their written, infonned consent before acting as a dual or designated agent. 23. I understand that one of the documents that the plaintiffs have focused on in this Sheet." case is a document entitled "Disclosure and Prompt In connection with preparing this affidavit, I was shown a copy of the Disclosure and Prompt Sheet by counsel. Prior to the filing of this case, I do not recall having ever seen the Disclosure and Prompt Sheet. I have never used "script" the Disclosure and Prompt Sheet as a for obtaining consent to dual or designated agency, nor have I used the Disclosure and Prompt Sheet for any other purpose. The same is true for the work I have done in my capacity as a manager-I do not recall ever having seen the Disclosure and Prompt Sheet; and I have never required or encouraged agents in my office to use the Disclosure and Prompt Sheet for any purpose. 24. I understand that the plaintiffs in this lawsuit have alleged that Lewis Arlt was "guru" Houlihan Lawrence's on dual agency and that he was somehow instrumental in Houlihan Lawrence's supposed efforts to mischaracterize dual and designated agency relationships. Mr. 6 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 Arlt was a manager in Houlihan Lawrence's Scarsdale office for patt of the time at issue in the lawsuit. I never worked directly with Mr. Arlt. Moreover, during my tenure with Houlihan Lawrence, I never received any training, direction, or advice from Mr. Arlt related to dual or designated agency. 25. As a manager, I generally do not participate in the disclosure conversations between Houlihan Lawrence agents and their clients. Therefore, I generally do not know what any particular agent said to any particular client when obtaining their consent to dual and/or designated agency. I generally trust the agents who work in my office to comply with their obligations to obtain infonned, written consent to dual and designated agency, and I do not have any reason to think that the agents who work in my office fail to do so. 26. Prior to the filing of this lawsuit, I am not aware of any client who ever complained about the fact that Houlihan Lawrence and its agents acted as dual or designated agents in a particular transaction. In my experience, it is very common for the larger brokerage companies in New York to regularly act as dual and/or designated agents. Generally, the more agents who are affiliated with a particular brokerage company in a given area, the more likely it is that a dual or designated agency transaction will occur because it is more likely that a potential buyer will happen to be working with an agent affiliated with the same company as the agent working with the seller. In other words, the more successful a real estate brokerage company is at growing its number of agents, the more dual and designated agency transactions it will have. 27. In my experience both as an agent and a manager, it would not be a good business practice to favor dual and designated agency transactions over non-dual agency transactions. Successful real estate agents rely on positive referrals to grow and maintain their businesses. If an agent were to push a seller to accept an inferior offer or a buyer to overpay for a house just 7 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 because it would result in a dual or designated agency transaction, that agent would be risking the long-tenn value of positive referrals. In my experience, agents are unlikely to take that risk. 28. Prior to becoming affiliated with Houlihan Lawrence, I had worked as an agent with Weichert, another brokerage company in New York. In my experience, Houlihan Lawrence and its agents handle dual and designated agency transactions and disclosures similar to the way that Weichert and its agents did while I was there. 29. I understand that the plaintiffs in this lawsuit allege that Houlihan Lawrence's in- house bonus program is part of some alleged strategy to increase dual and designated agency transactions. In all of my years as an agent and manager for Houlihan Lawrence, my offices have never participated in an in-house bonus program. 30. I have not seen anything during my tenure at Houlihan Lawrence that leads me to believe that Houlihan Lawrence has some kind of orchestrated strategy to increase the number of dual and designated agency transactions that occur. 31. I am a citizen of the United States, and I am competent to give testimony in this matter. Unless stated otherwise, the above testimony is based on my own personal knowledge. And although counsel assisted in preparing this affidavit, I reviewed it carefully, made changes where I thought it was appropriate, and affinn that the contents of this affidavit are true and accurate. 8 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) Charles Vetter Swo 1 o and s cribed before me this day of 024. dEAnC Cyef)a,k NOTARY PUBLIC SEAL ELLEN C BREMILLER NOTARY PUBLIC, STATE OF NEW YOliK Registration No. 018R6202498 Qualified in Dutchess County Commission Expires March 16, 2025 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1780 RECEIVED NYSCEF: 03/11/2024 Certificate of Counsel Pursuant to Commercial Division Rule 17 I, Robert D. MacGill, counsel for Defendant, hereby certify, pursuant to Commercial Division Rule 17, that the word count for the foregoing document, excluding the caption, table of contents, table of authorities, and signature block, is 2507 words. This document therefore complies with the rule that limits briefs, memoranda, affirmations, and affidavits to 7,000 words. I certify that the Microsoft Word generated word count for this document is 2507 words. Dated: Indianapolis, Indiana February 19, 2024 /s/Robert D. MacGill