LAS VEGAS — The National Association of Realtors may engage in discussions with U.S. Justice Department officials in an effort to settle an antitrust lawsuit that was filed more than two years ago.
“If we’re unsuccessful in reaching any type of a satisfactory resolution, the case looks like it will go to trial in about June or July of next year,” said Laurie Janik, general counsel for the National Association of Realtors, on Wednesday during a committee meeting at the association’s annual conference.
The lawsuit charges that the association adopted illegally restrictive rules for the online sharing and display of property listings information among real estate market participants that could be used to discriminate against market participants.
She said that the evidence-gathering phase of the lawsuit is nearly complete, and later this month or in December association officials “will take a breather,” assess the status of the case and consider the prospect of settling the lawsuit “on mutually agreeable terms.”
Janik also offered a report on other legal matters, including investigations by several state attorneys general that have led to requests for information from several multiple listing services.
Multiple listing services “are very much under the microscope” these days, Janik said, and are being watched closely by federal agencies such as the Justice Department and Federal Trade Commission, as well as state agencies.
Any actions that MLSs take that could impact their members’ conduct “is going to be scrutinized by them,” Janik said, particularly if it involves an industry participant that is offering a discount or a rebate.
The intense scrutiny, she said, applies to both Realtor-affiliated and non-Realtor-affiliated MLSs.
MLSs should dump any rules on their books that are antiquated, out of date, or are not enforced by MLSs, she said. “If you don’t enforce them, they shouldn’t be there.”
She said that once investigators are drawn to a particular MLS rule, they may expand their investigation to other MLS policies. “Once they are there they’re going to start looking at anything,” she said.
State officials in Illinois, Indiana, Colorado, Minnesota and possibly other states have asked for access to MLS information, she said, to aid in the investigation of mortgage fraud. “They think that MLS statistics will help them in their investigations,” she said.
While it is voluntary for MLSs to provide this access, she said that those MLSs that decline to offer access may lead to subpoenas.
MLSs can work to limit the scope of the access and to track the access, she said. “You don’t want them going on a fishing expedition finding other potential violations of the law.”
She suggested that MLSs can ask investigators to specify the purpose of the access, and to supply investigators with read-only access to data to protect existing MLS data. Also, providing accounts to individual investigators would allow MLSs to track access of the MLS, she said.
The National Association of Realtors has committed more than $800,000 in legal assistance to defend a mapping patent lawsuit filed against a Pennsylvania Realtor.
The patent holders had sought class-action status for that case to charge a larger group of Realtors with infringement, though Janik said that the judge has denied class-action certification.
She also noted that a contentious legal battle between shareholders of a Chicago-area MLS is ongoing. The shareholders have sought to block the merger of a large Realtor association-owned MLS with a smaller, competing broker-owned MLS, and that case is under appeal.
