The NAR is under fire, sued by the Department of Justice (DOJ - the government's prosecution arm and one of the enforcers of the Sherman Anti-trust Act).  Despite what it is being portrayed as by the Department of Justice, that NAR/MLS policies are anti-competitive and negatively effects consumers by hurting discount broker operations, this is NOT what the actual suit is about.  Reading the actual documents (a DOJ press release following their win in the appellate court - a win the NAR expected them to get) and the court's ruling itself, it is clear that the suit is really focused on attacking the policies which allow VOW opt-out by listing brokers, so that VOW sites (whether at a discount broker or not) don't show certain listings.  DOJ is only allowing it to be portrayed as anti-discount model for public sentiment reasons.  In fact every full service firm that has a VOW link on their site also feels the effects, because any opting out keeps listings off all brokers' VOW sites, not just the discounters. 

To illustrate my point, here's just one line from the DOJ press release: "NAR's policy enables traditional brokers to exercise an "opt out" right to block their competitors' customers from having full on-line access to all of the MLS's listings."  Yes, that's true, but that is not in any way preventing customers/consumers from having access to the MLS data, only allowing certain listing brokers to themselves elect not to let their sellers get that exposure.  That's like the DOJ mandating that we all list all our listings on Zillow.com because not doing so is inhibiting the consumers' ability to find out our listings exist, and that it would actually be illegal if we didn't do that.  HUH!

Legally, I believe that the NAR and the MLS services have every right to exclude anyone they want (and to let listing brokers opt-out), including certain of their own members, so long as their rules are not discriminatory in a way that violates civil rights.  In fact, it isn't even the MLS that's excluding someone, it's the listing brokerage firm that opts out of the VOW program.  Just to give the DOJ's PR spin it's due, to me that still holds even if it was really just that refuse to allow "discount brokers" to participate in the MLS VOW programs.  That, to me, is their right.  Don't forget that the NAR, just like the local country club, is a private trade organization with paid membership requirements to benefit.  They have the right to set their own internal rules, just like the country club can have a Men's (only) day on Monday and a Ladies (only) day on Tuesday. 

That said, the appellate court's ruling noted a the case of chiropractors against the American Medical Association for similar practices in which the chiropractors won.  I do believe there are differences, though, to that case, as I think (don't hold me to this) the AMA was refusing to allow chiropractors to join the AMA even if licensed as medical professionals, whereas I'm not aware the NAR is refusing membership to anyone, discounter or otherwise. 

More importantly, though, to me there is a different issue ultimately in play here.  The lawsuit may be about what the NAR & MLS services must legally do (and what their obligations are to the general public vs. their members).  However, the most important issue that the NAR might be overlooking here is what smart business practices dictate (i.e. Adam Smith's "invisible hand" of market competition, not the iron fist of the DOJ).  I believe the NAR will prevail against the DOJ's suit in the end, but I think they are very likely in the meantime to lose the war and further hurt the less-than-optimal public view of REALTORS (which I don't personally share, but which surveys suggest some people think less of real estate agents than even lawyers - ouch).  If the DOJ has John Q. Public convinced that we (yes, if you are a REALTOR you are part of this) are acting against the public's best interest, how receptive do you think he's going to be to hiring you?!

Because of this, I think the MLS policies might need to be looked at very differently.  As the largest trade organization in the US, the value of the trademarked REALTOR brand is at stake here.  Realtor.com may be the biggest (?) internet site for public property (home) search, but it won't be if the public perceives that they are not the most complete source of information, or that they are discriminating against someone (whoever that really is).  Enter Zillow et al. 

Market based decisions are not always the same as legally defendable decisions.  OJ got a "not guilty" verdict in court, but not outside of that courtroom.  Ask him how it feels to win the battle and lose the war (remember he's supposedly been bankrupt since).  I hope the NAR doesn't realize that too late.

BONUS THOUGHT - I think the DOJ is playing the PR game to get enough anti-NAR sentiment from the public to scare the NAR into being strong armed into a settlement that is well short of what the law allows (which should be, again, no change at all).   This is exactly where the NAR is losing the war, the REAL war, the one about the public image.

AFTERTHOUGHT (which I noted in the comments following my next post) - if it is illegal for brokers and agents to talk in the context of "market" or "standard" commissions, how can the DOJ then call anyone a "discounter" because to be a discounter means a discount from something...like a "market standard" commission!