An appellate court today upheld an earlier ruling that the Cincinnati Area Board of Realtors did not break the law in pulling property listings from public view at its Web site.

The Web site is maintained by the Multiple Listing Service of Greater Cincinnati Inc., a subsidiary of the Cincinnati Area Board of Realtors.

“Complete vindication,” said Patrick F. Fischer, a lawyer for Keating Muething & Klekamp who represented the Realtor board in the lawsuit. “The board acted with full authority to do what it did and the court upheld that in its entirety.”

Ed Rothenberg, broker-owner at Ed Rothenberg Realty in Cincinnati and a leading representative in the lawsuit against the Realtor board, said, “We’re very disappointed. We certainly felt we had a strong case.”

Rothenberg and a group of other real estate professionals had charged that the Realtor board’s move to remove MLS property listings information from public view constituted a breach of fiduciary obligations, and that it violated the MLS constitution.

Judges for the Ohio First District Court of Appeals in Hamilton County, Ohio, concluded that “because the board of directors acted in accordance with the constitution … Rothenberg could prove no set of facts to show that the board of directors breached its fiduciary duty.”

The board of directors voted in September 2004 to deny public access to property listings at the Web site, and a group of the board’s members protested the decision and collected signatures for a petition.

“A referendum was held, which resulted in a vote of 1,050 to 611 in favor of denying public access to the Web site. The board removed public access to the site in November 2004,” court documents state.

Rothenberg and other members took the issue to court, charging that the board’s elimination of public access to the listings “was void because it was contrary to the constitution.” The group also sought an injunction requiring the board to restore public access to property listings information at the site, though the trial court dismissed the complaint.

The real estate professionals who filed the lawsuit had charged that the Realtor board was required to amend its constitution in order to eliminate public access to MLS property listings information at the Web site.

The appellate court cited an article in the board’s constitution that gave its board of directors “discretion to act on matters related to (the board) that are not ‘specifically or otherwise provided for in (the) constitution.’ The online service related to the MLS was not provided for in the constitution. Therefore, the board of directors had the discretion to restrict access to the Web site.”

Rothenberg said that the public access to property information at the MLS Web site benefited consumers and created a level playing field for brokers of all sizes, particularly small brokerage companies that lack the brand recognition to draw a large share of online consumers to their Web sites.

“Because they did this it benefited the large brokers here in Cincinnati,” he said. “It hurt the smaller brokers.”

He added, “There’s no question I do less business (now). There’s no question that it has hurt me and I know it hurt many of the other smaller brokers.” A group of about 50 smaller brokers contributed money for the legal expenses, he said.

About 156 companies that are members of the MLS of Greater Cincinnati participate in a broker reciprocity agreement through which they display property listings from participating brokers on their own Web sites.

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