Law: 'One for the Good Guys'

Common sense wins in Department of Justice antitrust settlement.

July 1, 2008

It took nearly three years, but when the U.S. Department of Justice and NAR settled their differences over the association’s online listing display policy, cooler heads prevailed.

In a proposed final order announced May 27, the DOJ left untouched NAR’s Internet data exchange policy, which is by far the predominant MLS policy for governing the display of listings online.

The agreement does, however, alter the association’s policy governing the display of listings on virtual office Web sites, Internet platforms on which companies provide brokerage services.

While NAR agreed to make some changes to its VOW policy, it won what it most wanted to protect: the integrity of the MLS as a platform for broker-to-broker cooperation.

Under the revised policy, brokers can’t selectively choose which VOWs can and can’t display their listings (what’s called the selective opt-out), but they can demand on behalf of their clients that VOWs turn off offending features around those listings: negative blog posts, misleading automated price estimates, and anything considered false.

“This approach to protect brokers and their clients is different, but the result is the same,” says NAR General Counsel Laurie Janik.

Perhaps more important, NAR gets to retain an MLS membership rule aimed at prohibiting companies that become members solely to populate their Web sites with listings, not to help consumers buy or sell real estate.

The reach of the revised VOW policy could be limited, says Mark Lesswing, NAR’s chief technology officer, because the industry has largely evolved away from VOWs, which require consumers to register online and enter into a terms-of-use agreement before they can search for homes. After a 60-day comment period, U.S. District Judge Matthew Kennelly will determine whether to sign off on the final order. If he does, the industry will have closure at last on the thorny issue of how brokers’ hard-won listings can be used online.

“People are losing their homes, and here we’ve been dealing with a lawsuit about a technology the industry had already moved past,” says William Lublin, CRB, CRS®, chair of NAR’s Professional Standards Committee. “But at least the outcome is right. This is one for the good guys.”

To access complete settlement details, visit