Lawyers for the U.S. Justice Department, in legal filings Monday, stated that the National Association of Realtors‘ legal motions to dismiss parts of a federal antitrust lawsuit “all miss the mark.”
In the lawsuit filed in September and amended in October, the federal government charges that the Realtor trade group has adopted policies for the online display and sharing of property information that are overly restrictive. The U.S. District Court for the Northern District of Illinois is handling the case.
In December, lawyers for the trade group attempted to toss out certain aspects of the federal government’s case. For example, the association charged that it had already withdrawn a Virtual Office Web (VOW) site property listings policy that is the subject of the original complaint.
“Neither the parties nor the court should waste time and resources” in litigation over a policy that is no longer in effect, the association charged. About 200 Realtor-affiliated MLSs chose to adopt the association’s initial VOW policy after it was adopted in 2003, the Justice Department alleged in its complaint.
The trade group had also challenged federal claims relating to opt-out provisions of the VOW policy and a new Internet Listings Display (ILD) policy, stating, “These provisions do nothing more than permit individual entities to make independent decisions regarding whether to authorize display of their own listings on the Internet sites of other entities. Thus, they do not involve any collectively imposed restraint of trade as required to state a claim under … the Sherman Act.”
And the association stated in its motion that opt-out provisions of both online listings policies “impose no restraints whatsoever on any of NAR’s members who would be subject to the policies if they were being enforced. They do not encourage NAR members to refuse to allow listings to be displayed on other brokers’ Web sites. Any decision to opt out is made unilaterally by listing brokers exercising their independent judgment.”
“Defendant’s motion to dismiss makes three points; all miss the mark,” the Justice Department’s Feb. 6 court filing states. “First, this Court has jurisdiction over the Initial VOW Policy despite NAR’s assertion that it modified that policy shortly before the United States filed suit. Courts have on many occasions enjoined conduct that had ceased before the United States brought an enforcement action,” the DOJ filing states.
“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 and virtual office Web site operators, in particular,” according to the DOJ filing.
Under the association’s initial 2003 VOW policy, a broker could pick and choose which other MLS participants could display his or her listings on the Web or could choose to prevent all other MLS members from displaying them. Under the newly formed ILD policy, which the association has also withdrawn pending the litigation, listing brokers can still choose to keep their listings from all other MLS member Web sites but cannot reserve them from individual sites.
Laurie Janik, legal counsel for the National Association of Realtors, has told association members that the trade group will likely face a long and costly legal battle even if it ultimately prevails in the lawsuit.
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