Attorney David Barry is representing broker Sherry Edwards in her lawsuit against the Northern Kentucky Association of Realtors (NKAR) which both hope will result in associations no longer being able to tie trade association membership with MLS access.

National Association of Realtors (NAR) and NKAR's attorneys promise a fight.

Barry's case is based on the position that trade associations operate a monopoly in MLS access, and that tying trade association membership to MLS access is an anti-trust violation.

"This is my first contact with Mr. Barry," says Rob Ziegler with Ziegler and Schneider, attorneys for NKAR and the Northern Kentucky Multiple Listing Service, Inc., "but he has a history of challenging Realtor organizations. We are going to defend our position, and we don't think he is going to be successful. The program and system is defensible and will succeed."

Explains Ziegler, in Northern Kentucky, in order to use the MLS system, applicants must be members of the Northern Kentucky Association of Realtors.

"The listing service requires you to be a member of NKAR," clarifies Ziegler, who explains that the reason is fear of the integrity of the MLS.

"By being members of NKAR, they are bound by ethical obligations, so other members will know that the people who are using the system are going to serve for the betterment of the system and the public. If there is a dispute, for example, both parties are bound by arbitration, which if members had a dispute with a non-Realtor, then it could arguably go to court. Arbitration and ethics are imposed by the NKAR and NAR, and by the MLS saying membership means that they are subject to the NAR's Code of Ethics and arbitration. If they allow nonmembers, they wouldn't be bound by those rules of engagement. And that makes the MLS harder to control and to protect. That's the reason for making the MLS exclusive to NKAR members."

Ziegler also denies that system is designed to keep competitors down.

"No one is telling the plaintiff that she can't join," says Ziegler. "As long as an individual is licensed by the state, it isn't discriminatory. No one is saying she can't have listings."

NAR attorney Laurie Janik supports NKAR's and the listing service's position. "Suits challenging the requirement of association membership in order to participate in the association's multiple listing service have been brought under both state and federal antitrust laws," explains Janik. "NAR believes it is lawful for an association to say that its multiple listing service is provided for members only as long as membership is available to all brokers on reasonable and nondiscriminatory terms.

"While a number of courts have agreed with this position, two have disagreed. For that reason, MLSs in California and in the 11th circuit (FL,GA, AL) permit nonmember brokers to participate in the MLS. Everywhere else in the nation, NAR policy permits the Realtor association to determine whether it will limit MLS to members only or offer MLS to nonmember brokers."

She also doesn't agree with Barry's position that MLS access is an illegal "tie-in" with trade association membership.

"What is membership in an association other than the package of services it provides to its members?" suggests Janik. "In our view, there is one product - association membership. When you purchase membership, you are entitled to receive the services offered to members. MLS is one of those services."

Published: February 26, 2004

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