In a short and somewhat brusque court filing yesterday, the National Association of Realtors® (NAR) asked a federal judge to ignore the request of Michigan-based brokers suing the organization over MLS access rules, characterizing their reference to recent MLS rule changes as technically inadmissible and broadly irrelevant to the case.
The curt, three-page response comes after the plaintiffs in the lawsuit—three brokers who have alleged that Realtor® membership requirements for MLS access violate antitrust laws—asked a judge to view recent rule changes enacted by NAR as an “admission” that these policies were illegal.
“Even were this Court to consider this new, unpleaded factual information, the information is not relevant because it cannot be used for the purpose Plaintiffs seek, rendering it irrelevant,” the filing reads. “And, in any event, NAR’s MLS Policy Handbook update is in no way an admission of anything.”
Last month, the brokers referred to policy changes enacted at NAR’s annual meeting, which broadly retreated from MLS policymaking, as a relevant new development the judge should consider as he mulls whether to allow their lawsuit to move forward. NAR argued not only is this far from the truth, but that it is also entirely disallowed on procedural grounds, as the plaintiffs had attempted to submit the information as a “supplemental authority” for the case.
“Here, Plaintiffs seek to introduce a fact for the Court to consider in deciding the Motion to Dismiss: that NAR updated its MLS Policy Handbook,” NAR wrote. “This factual information is not legal precedent.”
The lawsuit, known as Hardy v. NAR, was the first of more than half a dozen lawsuits filed by brokers broadly pushing back against policies that require Realtor® membership for MLS access. Since the early 1990s, NAR has allowed local MLSs to make their own rules regarding whether non-Realtors® can access the MLS.
NAR has continued to defend the “three-way agreement,” which requires that Realtors® pay dues and hold membership in the local, state and national Realtor® associations, though policy updates referenced by the Hardy plaintiffs removed language related to defending MLS access requirements and officially urged MLSs to “seek assurance that they can still require association membership locally and deem it a reasonable requirement.”
At least two similar broker lawsuits have been dismissed, but others, including Hardy, are still awaiting rulings by federal judges.
