Judge sits on DOJ, NAR settlement

A U.S. District Court judge on Thursday put off a final judgment on the settlement of a 3-year-old legal battle between the U.S. Department of Justice and National Association of Realtors.

NAR officials had expected the judge to finalize the settlement during a court appearance on Thursday. "We're on hold for a day or two," said Lucien Salvant, a spokesman for the Realtor group.

U.S. District Court Judge Matthew F. Kennelly could call upon all of the parties to return to the courtroom or he could choose to approve the final settlement and notify the parties, Salvant said.

During an annual NAR conference last week in Orlando, Fla., NAR General Counsel Laurie Janik noted that about 100 multiple listing services were required to produce documents during the two-year federal investigation that preceded the antitrust lawsuit and during the course of the lawsuit.

"A few of you were on the trial list to serve as witnesses," she told attendees of a Nov. 8 NAR Multiple Listing Service Forum meeting.

The lawsuit had alleged that policies that had been approved by the National Association of Realtors related to the online sharing and display of property listings information were illegally restrictive.

The proposed settlement creates a revised National Association of Realtors policy for Virtual Office Web sites operated by brokers -- these Web sites can be used to supply more real estate information to consumers than is now available on some existing Web sites operated through broker-to-broker sharing agreements.

Janik said that after the judge signs off on the settlement agreement, NAR will be mailing out to MLS a packet of information including the revised policies relating to VOWs. And MLSs will have three months in which to adopt the revised policy and send NAR certification that they have adopted it, Janik said.

At that point, NAR will inform DOJ whether any MLSs have refused to adopt the revised policy.

The proposed settlement will require MLS members to actively endeavor to list or sell properties, Janik reminded. This does not require that MLS participants engage in a specific number of sale transactions -- in fact, an MLS participant that doesn't engage in a single transaction could still comply with this requirement as long as there was an active effort made to list or sell a property.

Janik said that a "seasonal" broker -- who offers services only during a specific season of the year -- could also comply with this requirement, which is effective as of May 27, 2009. Real estate appraisers who have access to MLSs will not be unaffected by this provision, she added, as their use of MLS data is limited to the scope of their license.

Under the proposed settlement, VOW operators must be available to answer questions about properties included on the VOW site, Janik also said. Communications could be via e-mail or online chat, for example, she said, as the physical location of the VOW operator does not matter.

"They could be in Central Florida, they could be in South Dakota ... as long as they are knowledgeable about those listings," she said. "You have to be responsive and service that consumer. You have to get back to them. You have to find that information."

She cited the example of a question posed to a VOW operator by a consumer seeking specific details about a property in Los Angeles. If the VOW operator simply responded, "I know it's in L.A.," that "is not sufficient" as a response, Janik said.

In another example, a North Dakota VOW site that carries listings information for properties in Southern Florida would need to have a Florida license to display those properties, Janik also said.

Once an MLS adopts the new VOW rules, MLS participants must be in compliance no later than 180 days after the rules are adopted.

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