Response to antitrust claims

The following is language from a memo that will be released from Texas REALTORS® Legal Department to local association executives tomorrow, Friday, October 18:

Recently some local associations have received questions from members about the MLS rule changes required by the NAR lawsuit settlement, including the requirement of a signed buyer representation agreement prior to the buyer touring a home. Some members have questioned whether this requirement violates antitrust laws and have threatened legal action against local boards and MLSs for implementing the NAR rule changes to comply with the settlement.

Please know that both Texas REALTORS® and our outside antitrust legal counsel do not agree with these assertions. For your information, we wanted to remind you of the following:

• The MLS rule changes are a result of an agreed settlement of an antitrust lawsuit. The terms of the settlement have received preliminary approval by the judge with final approval expected in the coming months. A federal judge overseeing the settlement of antitrust litigation would not approve a rule change that is itself a violation of antitrust laws.

• The rule does not require buyers to enter into an agreement to have access to property. The rule requires REALTORS® that are working with (i.e., representing) buyers to enter into written agreements. The agreement must be signed before showing a property. No buyer is required to sign any agreement to access property. If a buyer doesn’t want representation and doesn’t want to sign an agreement, they can be shown the property by a REALTOR® representing the seller as either the listing agent or a subagent.

• The rule does not require the written agreement to contain any specific terms. The agreement does not have to be exclusive, long-term, or require payment. For example, TXR 1507 can be used to show one property, for one day, for $0 compensation, on a non-exclusive basis.

Remember, every individual REALTOR®, association, and MLS that opted-in to the settlement is released from any liability if they comply with the terms of the settlement. By refusing to comply, a REALTOR®, association, or MLS is subjecting themselves to additional scrutiny by the plaintiffs in the Sitzer/Burnet case and potential liability for the $1.76 billion judgment.