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02/14/2006
| NAR Prepares for Long Antitrust Fight In an action that signals it will be a hard fight as NAR defends brokers’ right to determine how their listings are displayed on the Internet, the U.S. Department of Justice has filed a brief arguing against a motion NAR filed in December seeking to dismiss the agency’s antitrust lawsuit against the association.
Dear Association and MLS Leadership: I want to take this opportunity to update you on the suit brought against the National Association by the Justice Department. As many of you know, the government is claiming that NAR policies governing display of MLS listing information on the Internet (including both the rescinded VOW policy and the new Internet Listing Display policy) violate the federal antitrust laws. NAR strongly disagrees with the government’s contentions and is vigorously defending both the MLS as a vehicle for broker-to-broker cooperation as well as the ability of a listing broker to control the use of that broker’s listings on the Internet by competitors. Several court filings have occurred since the government’s initial complaint was filed in September of 2005, all of which can be found on realtor.org. In early December, NAR filed a motion to dismiss the government’s complaint. Last week, the Justice Department filed its opposition to NAR’s motion. Not surprisingly, the government disputes NAR’s arguments. NAR will reply to the government’s brief and a decision on NAR’s motion will follow later this spring. We clearly have differing views on a number of key issues. One is the lawfulness of a MLS rule that gives each participant the right to decide whether competitors can display that broker’s listings on their Internet sites. The government believes that the opportunity to display other brokers’ listings on an Internet site is an inherent right of participation in the MLS. According to the government, brokers who do not want to permit such Internet display must drop out of the MLS. NAR believes that, in order to preserve the cooperation that has made MLS so valuable, it is necessary to allow each broker to determine whether her listings can be displayed on competitors’ websites. Second, the government believes that any licensed broker may use MLS listings, including making money from the display of those listings on their website. NAR strongly believes that brokers must be engaged in the business of either listing or selling properties to be entitled to participate in the MLS. Third, the government persists in mischaracterizing its suit as one to protect “innovative” brokers who use the Internet against “traditional” bricks and mortar brokers. This artificial distinction ignores that fact that “traditional” brokers have actively embraced the Internet to reach consumers. The government also continues to gloss over the key issue of a listing broker’s right to control her hard earned and valuable asset, her listings. Finally, the government claims that the ability to display other brokers’ listings on a website is nothing more than a delivery vehicle, like faxing or mailing a listing to a consumer. They do not understand the power of real estate listings to draw business to a website. It appears we are in for a long, hard and costly battle that will span this year and next. NAR is committed to spending the resources necessary to protect and preserve brokers’ rights and the viability of the MLS system. I will continue to provide you updates as developments occur and you can check the progress of the case by visiting the page on Realtor.org dedicated to this litigation. Sincerely, Tom Stevens, President, National Association of REALTORS® Read the Department of Justice's responses to NAR's motion to dismiss: Memorandum in Opposition to NAR's Motion to Dismiss (PDF, 147K) > Declaration of Antitrust Attorney David C. Kully (PDF, 480K) > |
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