DOJ vs. NAR: A mega-producer's

This is an extract from a post at BloodhoundBlog. Phoenix-area mega-producing Realtor Russell Shaw has been debating the DOJ/NAR case with Seattle-based real estate attorney Russ Cofano. These are the links to the debate so far: Introduction, Part 1, Part 2. Shown here is a section of Russell Shaw's most recent reply:

Either NAR will ultimately prevail in court or they won't. If they do, then "The new rule defines an MLS Participant as a broker who makes offers of compensation to and accepts such offers from other brokers" will stand. If NAR should lose, then there may be some other definition for an MLS participant forced upon NAR. Should that come to pass and depending on how restrictive or outlandish that definition might be, would determine the future of the MLS. My main point in my last writings on this subject wasn't to make some veiled threat of "no more MLS" if NAR does not get what it wants in court. I believe that the entire problem (the fact of the litigation occurring at all) is based on a misunderstanding: the meaning of the term "MLS". In virtually everything you've written and everything I've seen from the DOJ - all of the legal precedents involved - the definition for MLS being used does not even seem to consider that it is a BROKER TO BROKER OFFERING OF COMMISSIONS. Period.

One of the great dumb philosphy questions is, "If a tree falls in a forest and there's no one there to hear it, does it make a sound?" What makes the question dumb is the concept of "sound" being used in the same sentence with two completely different meanings. One is the experience of hearing and the other is sound waves.

All of the DOJ "definitions" are only from the “market power” anti-trust perspective. In its original "pure form" the MLS was only a way to offer compensation to other brokers. When I started the MLS book didn't even have photos, that "breakthrough" came later. LOL. I believe that NAR (along with the various and numerous Realtor associations) consider the MLS valuable enough to protect it. I was predicting that a "DOJ victory" would not deliver anything even close to the outcome they had in mind. In the not too distant past - for a company or individual agent - Realtor.com was the only possible way to get your listings "out there". That isn't true anymore. There are now dozens of sites that allow listings to be uploaded (many for free) that then propagate those listings to other sites that display them. For example, here is a partial list of where my listings show up.

What I believe will happen if the "DOJ wins" is the DOJ loses, right along with everyone else. I believe that the IDX feeds that got all this started in the first place will ultimately be limited to each broker displaying just their own listings. The sites that allow FTP mass uploading will wind up with a LOT of listings to display! The definition of what the MLS is will be become strictly enforced in order to preserve it.  The other possible scenario would be for each local MLS to break off from the NAR and possibly wind up broker owned - again, with a strictly broker to broker compensation as it's basis. Either way, I don't see the DOJ "winning". And, for the record, I'm glad the NAR is taking the position of not backing down on this issue.

-- Russell Shaw, BloodhoundBlog

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