Attorney David Barry continues to make news in the real estate industry.

He has almost single-handedly confronted the industry about practices he believes should be halted, from the NAR's servicemark control of the words Realtor and Realtors, to MLS "price-fixing," to associations forcing licensees and others to join the board in order to gain access to the board's MLS database.

Last week, Barry represented real estate broker Sherry Edwards as she filed suit in federal court against the Northern Kentucky Association of Realtors seeking an injunction barring the association from forcing real estate agents to buy memberships in the Association as a condition of being able to buy access to MLS services.

"Tying MLS access to a Realtor association membership has long been illegal," says Barry. "It's a surprise that Realtor associations still think they can get away with it."

According to Barry, associations who attempt to tie-in MLS access with board membership are violating the Sherman Antitrust Act, and he says that judicial decisions in Florida, Georgia, Alabama, Colorado, New Jersey, and California have already invalidated such restrictions on MLS access.

Edwards, a principal of plaintiff Buyer's Corner Realty, Inc., seeks return of the past four years of membership dues. Under the Sherman Antitrust Act, those damages would be tripled, for a total requested judgment of $4,071, plus attorney's fees and costs.

"I don't agree with the politics of the board or NAR, and I don't want to be forced to pay their dues just to get the MLS," says Edwards, a charter member of the National Association of Exclusive Buyer Agents.

Many buyer agents have long complained that Realtor politics favor listing agents and dual agents, and overlooks the minority buyer agent.

Explains Barry, the problem is tie-ins.

"You can buy flour and as part of the purchase price, they can give you sugar," explains Barry, "and if you don't like that deal, you can buy your flour separately, but bundling MLS services with membership services is illegal because you can buy them separately. You can be a board member without subscribing to an MLS, like appraisers or title companies which join the board with an affiliate membership, but they never use the MLS. Sometimes you have people active in the board, and they like to vote and be on committees, because they aren’t active in the market anymore. There are benefits to being on the board such as education, camaraderie, and publications. Those are trade association functions and the Realtors sell that separately from MLS access, but that is one of the tests of the legality of tie-ins."

Barry tells the story of IBM.

"Before the 1930s," explains Barry, "IBM had a lock on the market on tabulating machines and punch cards. Everyone bought IBM because they had patents and you had to go to them - they had a monopoly on that market. They acquired it because of their technological prowess, but if you wanted one of their machines, you had to buy their punchcards. The justice department said that was illegal because you are extending the monopoly to a second market.

"So in the real estate industry, you have a machine-like monopoly in the first market, which would be the MLS. There's only one MLS in northern Kentucky, and anybody who is an agent has to have that MLS or they are out of business," says Barry. "The tie-in would be the membership – the punch card."

Barry says there are closed MLSs all over the country, and yet no one challenges them.

"Agents are afraid of challenging their boards, and many are fearful of acting," says Barry. "Ms. Edwards is tired of it and is not fearful."

Published: February 24, 2004

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Blanche is a renowned author of five real estate books. Her newest, Bubbles, Booms and Busts: Make Money In Any Real Estate Market, McGraw-Hill, was rave-reviewed by The New York Times. She was also selected from hundreds of real estate experts to contribute to Donald Trump's book, Trump: The Best Real Estate Advice I Ever Received: 100 Top Experts Share Their Strategies, Rutledge Hill Press, and is featured on page 68. Order Now Review - Honors In 2006, Blanche was selected among scores of candidates to author two consumer real estate guidebooks for the National Association of Realtors: The NAR Guide to Home Buying, and The NAR Guide to Home Selling, Wiley & Sons. She is currently planning two new books for the NAR and its members.       Known for her keen insight into real estate industry issues and for her ability to make complex subjects easy to understand, Blanche is a sought-after keynote and continuing education speaker. Real estate organizations from MLSs, to brokerages, to franchisors, to associations hire her to provide up-to-the-minute analysis of real estate industry news and advice on how to improve revenues. Her passionate delivery, peppered with stinging wit, is a huge hit with audiences and fans. Don Klein, CEO Greater Nashville Association of Realtors, Blanche Evans, Richard Courtney, president 2007, GRAR "The GNAR membership meeting last week featured Blanche Evans as the keynote speaker. Her comments and insights resonated extremely well with those in attendance and we have had many requests for copies of her PowerPoint Presentation. She was a terrific part of the membership meeting and convention program!" - Don Klein, CEO Greater Nashville Association of Realtors Coverage from WSMV, Nashville - 8-14-2007 That Interview Guy - Get Inside The Head Of Today's Generation 2007 AE Institute Session - To purchase 2006 AE Institute Session - Parts 1 2 3 4 5 6 7 8 9 HouseValues Mastermind call - Parts 1 2 Blanche's fireside chat with Jeremy Conaway, HAR - Click here. For more articles by Blanche, click here.