The Federal Trade Commission wants Detroit-area multiple listing service Realcomp II to begin transmitting "exclusive agency" property listings favored by discount brokers to public Web sites right away, rather than waiting for the outcome of Realcomp’s legal challenge of an FTC order.
With financial backing from the National Association of Realtors, Realcomp has fought a three-year legal battle with the FTC over the MLS’s refusal to transmit exclusive agency property listings to public Web sites including Realtor.com and the Realcomp’s own public-facing site, MoveInMichigan.com.
The case is now before the Sixth Circuit Court of Appeals, after Realcomp challenged an FTC ruling, which found that the policy creates a "significant impediment" to consumers accessing listings represented by limited-service brokers, and helps protect full-service brokers from competition (see story).
After appealing the ruling, Realcomp asked the FTC to stay a Nov. 9 order requiring the MLS to begin transmitting exclusive-agency listings to public Web sites within 60 days.
Attorneys for Realcomp maintained they had established a "material likelihood" of success on appeal, and that a stay would "harm neither the public nor other parties." Realcomp, on the other hand, claims it will suffer "irreparable harm" if it is required to comply with the order.
In a Jan. 7 order denying Realcomp’s motion for a stay, the FTC said Realcomp has not identified "a factual or legal issue that establishes a likelihood of success on appeal."
Realcomp argues that an FTC administrative law judge dismissed the government’s complaint against Realcomp in December 2007. …CONTINUED
But the FTC claims that decision "was contrary to well-established legal precedent and sound competition policy, and at odds with basic economic learning."
With the FTC refusing to delay implementation of its Nov. 9 order, Realcomp has filed another request for a stay with the Sixth Circuit Court of Appeals.
The MLS has not changed its policy pending a ruling from the appeals court on that request, said Realcomp Chief Executive Officer Karen Kage.
Attorneys for Realcomp said the policy against transmitting exclusive-agency listings to public Web sites is aimed at "eliminating free riding by home sellers who compete with Realcomp members and … a bidding disadvantage for homebuyers who are represented by a cooperating broker."
Complying with the order "will result in harm to Realcomp members that cannot be quantified and will not be recoverable in the form of monetary damages or otherwise," the MLS’ lawyers said in responding to the FTC’s refusal of Realcomp’s request for a stay.
Realcomp previously estimated that it has racked up $2.4 million in expenses in its legal battle with the FTC. NAR has contributed $550,000 to the cause, and pledged up to $175,000 in additional backing to defray half the cost of Realcomp’s appeal.
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