NAR Moves to Dismiss Antitrust Lawsuits; Shows Lawsuits Are Self-Contradictory, Ignore Precedent and Lack Economic Sense
The National Association of REALTORS® (NAR) moved last week to dismiss the Moehrl v. NAR lawsuit and the copycat Sitzer v. NAR lawsuit because both amended complaints fail to show how NAR rules for the operation of Multiple Listing Services (MLSs) inhibit competition or cause the plaintiffs any harm. Moreover, the complaints misrepresent rules which have long been recognized by the courts across the country as protecting consumers and creating competitive, efficient markets that benefit home buyers and sellers.
“Throwing around a few anti-trust buzzwords doesn’t change the fact that MLSs have contributed to an orderly, efficient and pro-consumer marketplace for well over 100 years,” said John Smaby, President of NAR. “We continue to believe the lawsuits are wrong on the facts, wrong on the economics and wrong on the law.”
As NAR’s briefs detail, the essence of the plaintiffs’ argument is based on a flawed interpretation of the NAR Handbook on Multiple Listing Policy and Code of Ethics. According to NAR’s filings, misrepresenting NAR rules with “pejorative” and “anticompetitive-sounding” language does not outweigh the decades of court rulings that have found NAR rules to be pro-competitive and serve the best interests of consumers through enhanced transparency and efficiency.
“The MLS system creates highly competitive, efficient markets with increased transaction volume and superior customer service that benefit home buyers and sellers,” said Smaby.
NAR’s filings to dismiss also set forth the failure of the class action attorneys to meet legal standards necessary to move their case forward. As the briefs state, the “plaintiffs have totally ignored the long antitrust scrutiny of the MLSs and the repeated judicial conclusion that MLSs and the rules that govern them are pro-competitive.” Furthermore, NAR’s filings note that the plaintiffs’ claims lack any evidence that they were actually harmed by NAR rules. Per the brief, the plaintiffs “have not alleged that they even attempted to negotiate a lower commission either from their listing broker or for the buyer’s broker,” which, as noted above, is allowed by NAR rules anyway, contrary to their claims.
The National Association of REALTORS® is America’s largest trade association, representing more than 1.3 million members involved in all aspects of the residential and commercial real estate industries.
Want to talk to your clients about the lawsuit? Here are some talking points from NAR…
- REALTORS® are champions of homeownership, property rights and the communities they serve. Every REALTOR® adheres to a strict code of ethics based on professionalism, consumer protection and the golden rule. REALTORS® draw on their unmatched knowledge to help buyers and sellers navigate one of the most complicated financial transactions of their lives. And REALTORS® are engaged neighbors committed to building and enhancing the communities they serve.
- The MLS system and the way commissions are paid create competitive, efficient markets that benefit home buyers, sellers and small business. The MLS system creates a highly efficient residential real estate market that fosters cooperation between brokers to the benefit of consumers. Commission structures (including how the listing broker pays the buyer broker) ensure greater access for a large community of home buyers who might otherwise be priced out of the market, which also would limit options for sellers.
- Local, expert brokers play a crucial role in helping buyers and sellers achieve their goals. Given the volume of information buyers have to navigate and the complexity of this transaction, buyer brokers serve many essential, highly informed roles ranging from scheduling home tours and inspections to coordinating with lenders and appraisers to coordinating attorney reviews and closing documents. Consumers agree: 78 percent of homebuyers say their broker was an important information source, and almost 90 percent would recommend their broker to a family member or friend.
- These lawsuits are wrong on the facts, wrong on the economics, and wrong on the law. Commissions are negotiable and, in fact, can be negotiated at any point during the transaction. The MLS and associated brokerage system create highly competitive markets with increased transaction volume and superior customer service. Consumers have many choices of different service and fee models among many brokers. Over 100 years, the courts have repeatedly validated this pro-competitive, pro-consumer MLS system, recognizing it increases the efficiency of the market and thus serves the best interests of sellers and buyers alike.