The Department of Justice Antitrust Division filed suit in September against the National Association of REALTORS®, challenging a new policy that allows MLS members to choose an “opt out” provision that prohibits all other brokers from displaying that member’s listings. The Department's civil antitrust lawsuit was filed in U.S. District Court in Chicago.
According to NAR, “opt out” ensures that all members of Realtor multiple listing services will receive exactly the same MLS property listings for display on their Web sites as their competitors.
However, the Department said that NAR's policy prevents consumers from receiving the full benefits of competition and threatens to lock in outmoded business models and discourage discounting. "The purchase of a home is one of the most significant financial decisions a family can make, and NAR's policy stifles competition to the advantage of some of its members at the expense of home buyers and sellers across the country," said J. Bruce McDonald, deputy assistant attorney general in the Department's Antitrust Division. "Consumers benefit when real estate brokers are free to compete vigorously by offering innovative services."
NAR believes its policy is fair and in the best interest of consumers. “We believe the new [Internet Listing Display] policy is fair, pro-consumer, pro-competitive and accommodates innovation. After months of negotiations, we are at a loss to understand why the Department of Justice would bring a legal action,” a NAR statement says. “Many of the changes incorporated in the new policy are in direct response to concerns they have raised over the course of the two-year investigation. “The policy will bring consumers more points of access to real estate information from multiple listing services than they had before,” the statement continues. “For home buyers or sellers, this new policy is a win-win. Buyers will be able to find all the listings available for public display on the Web site of the broker of their choice and sellers will be able to work with the listing broker of their choice. The policy treats all MLS members equally yet respects the rights of property owners and their listing brokers to market a property as they see fit.”
Under the new policy, listing brokers will not be allowed to restrict the display of their listings on selected competitors’ Web sites, as they were under the controversial provision known as “selective opt-out” contained in NAR’s Virtual Office Web site (VOW) policy, according to NAR.
But, according to the Department, the new policy continues to discriminate against innovative brokers and does not resolve the Department's concerns. According to McDonald, those who choose to “opt out” are still on NAR’s consumer Web site, http://www.realtor.com/®. “We are seeking to create a level playing field,” McDonald said. “This is not the best [policy] for customers.”
Known as Internet Listing Display (ILD), the new policy consolidates and replaces both the VOW policy and NAR’s Internet Data Exchange (IDX) policy to create a single, unified policy governing the Internet display of all property information originating from the more than 800 multiple listing services owned and operated by Realtor organizations, the NAR said. All Realtor MLSs will be required to comply with the new policy by July 1, 2006.
“The policy does not discriminate against any brokerage model, including discount brokers,” said NAR President Al Mansell, of Salt Lake City.