Government Files Memo in Opposition to NAR’s Motion to Dismiss Antitrust Lawsuit The U.S. government filed a memorandum last month in opposition to a motion to dismiss an antitrust lawsuit against the National Association of Realtors. The suit challenges a new policy that allows MLS members to choose an “opt out” provision that prohibits all other brokers from displaying that member’s listings.
According to NAR, the policy 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 of Justice has 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.
In its memorandum, the government has responded to NAR’s motion to dismiss, which includes three points as grounds for dismissal:
1. According to court documents, the government asserts that “the court has jurisdiction over the Initial VOW Policy, despite NAR’s contention that it modified that policy shortly before the U.S. filed suit.”
2. “NAR’s VOW policies constitute restraints of trade, despite NAR’s protestations to the contrary, because they restrain competition in real estate markets, generally, and the behavior of multiple listing services (“MLSs”) and virtual office Web site (“VOW”) operators, in particular,” court documents say.
3. The government has “specifically alleged anticompetitive harm from NAR’s Modified VOW Policy. NAR’s contrary claim and its assertion of a heightened pleading standard are unfounded,” court documents state.
For these reasons, the government says that NAR’s motion to dismiss should be denied.
However, NAR believes its new 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,” an NAR statement said in September. “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.”
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 now-defunct Virtual Office Web site (VOW) policy, according to NAR.
But the government says that the new policy continues to discriminate against innovative brokers, and does not resolve the government’s concerns. In addition, according to the government, those who choose to “opt out” are still listed on NAR’s consumer Web site, Realtor.com.
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.
—Stephanie Andre |
