The changes the National Association of Realtors (NAR) made to its MLS Policy Handbook announced earlier this week did not go unnoticed by the Realtor plaintiffs in the Hardy lawsuit.
Filed in August 2024 by three real estate broker plaintiffs Douglas Hardy, Glenn Champion and Dylan Tent, the lawsuit claims that the requirement that all Realtors and brokers in Michigan be members of NAR, their state Realtor association and a local board of Realtors, represents an antitrust violation.
Additionally, the plaintiffs have claimed that the removal of offers of cooperative compensation from the MLS due to the business practice changes outlined in NAR’s commission lawsuit settlement agreement has “rendered membership in these organizations of no benefit.”
Is it an admission that NAR violated antitrust law?
In a motion filed on Wednesday, the plaintiffs’ counsel wrote that NAR’s decision to change its MLS policies was essentially NAR admitting that those requirements are “a violation of antitrust law.”
“This admission is critical to the issues raised by Plaintiffs in their complaint and rebut the Defendants’ arguments that the previous policy of the NAR requiring membership in its organization in order for brokers and agents to access the MLS did not violate antitrust law and were not wrongful,” the filing states.
After the changes announced Monday, NAR’s MLS Policy Handbook no longer states that to “the extent permitted by law, the National Association remains firmly and unequivocally committed to the principle that association membership is a reasonable condition of participation in the association’s multiple listing service,” after the most recent changes. Additionally, NAR has previously stated in its policies that it would provide legal or financial assistance to state and local associations or MLSs that were sued over these policies.
NAR’s response
In an emailed statement, an NAR spokesperson wrote that the trade group will respond directly to the allegations in court.
“NAR stands by the pro-competitive, pro-consumer local broker marketplaces, which local associations may choose to provide as a member benefit,” the spokesperson wrote. “Each local MLS sets their own requirements for determining access to the platform. NAR’s recently announced changes to the MLS handbook do not change the fact that MLSs have local discretion about whether to require association membership to participate.”
Changes to the MLS policy
Under the updated policy, NAR wrote that while MLSs are still allowed to require association membership for MLS access, they are leaving the matter up to “local discretion.” The update was part of 18 changes that were recommended by a presidential advisory group created by NAR’s immediate past president Kevin Sears and were based on the findings of an antitrust risk assessment conducted by NAR earlier this year.
Despite the interest in this announced change, NAR has allowed local Realtor boards and associations to decide whether they wanted to allow non-Realtors to subscribe and participate in their owned MLSs since adopting an optional rule surrounding Realtor membership and MLS access in 1994.
Two other lawsuits with similar claims that were filed by real estate agents were dismissed earlier this year, however one of the two still has an appeal pending.
