Category Archives: Politics & Regulation

Grading Time! Reviewing My 2014 Predictions

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Welcome to another edition of an annual tradition, in which I go back and grade myself on my predictions made at the start of this year. My track record so far:

  • 2010 Predictions: 6 of 10 (.600)
  • 2011 Predictions: 4.5 of 7 (.642)
  • 2012 Predictions: 2 for 7 (.286)
  • 2013 Predictions: 4.5 of 7 (.642)

When I made my 2014 predictions, I wrote: “In any event, it’s customary here at Notorious to make predictions that are sure to go wrong, or your money back! 2014 should be no different in that regard.” Given how gloomy my predictions tend to be, I’m happy to report a solid no-good outing in 2014!

Let’s get into it.

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Raising the Bar and Lawsuits… A Thought

I know I haven’t been blogging, but hey… when you’re sitting on the beach in Aruba staring at gently lapping waves of turquoise waters, diving into the Interwebz isn’t real high on your list of priorities. Trust me on that. :)

In any event, saw an interesting little tidbit this morning on Inman News that got me thinking. The item is this: “Realtors are all talk when it comes to education” The embedded video is below.

I met Leigh Brown at HearItDirect/RETSO event in Atlanta, and thought she was energetic and not afraid to speak her mind (as you can see above).

But here’s the thing. Leigh equates more education with Raising the Bar (an ill-defined concept, I know, but one that most of us kinda ‘get’ in our guts). She asks what’s it gonna take.

What if the answer is something seemingly unrelated? What if the answer is a lawsuit currently making its way through the California court system? Let me explain.

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Antitrust Questions on MLS Decision to Screw With Syndication

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Having just spent a couple of days at CMLS, a young man’s fancy turns to questions of MLS-related things. In this case, a middle-aged man’s fancy might turn that way too, since it’s been a while since I’ve been a young man with fancy of any sort.

As most of my readers probably know, RealTracs, a large regional MLS in Nashville, recently made news:

By the end of the month, Brentwood, Tennessee-based RealTracs Solutions says it will limit the information included in direct data feeds it sends to public portals. RealTracs, which has nearly 10,000 members, is also in negotiations with listing syndicator ListHub to limit third-party portals’ display of listing data.

The changes include a four-photo limit; the elimination of several data fields; listing descriptions will be restricted to 150 characters; and public portals will be required to include a link to the listing detail page on the listing broker’s website.

As part of its reasoning behind the changes, RealTracs said consumers deserve a closer relationship with Realtors who provide the work product powering public portals, and brokerage websites can provide a more personal experience for consumers. The MLS also said brokerages should be allowed to manage advertising in ways advantageous to their companies.

Zillow has already said Nyet to the plan:

Now, White says Zillow has informed him it would reject any data feed that did not have complete data and would therefore terminate the feeds of RealTracs listings it receives from listing syndicators ListHub and Point2 on Sept. 23. Zillow is the most highly trafficked real estate portal on the Web with 46 million unique visitors via desktop and mobiles devices in June, according to comScore.

No response yet from Realtor.com, but Trulia has already said it’ll go along with the MLS’s wishes.

I have to admit to being some sort of strange real estate nerd in that this situation makes me wonder about a couple of antitrusty things. But here goes.

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Competition Is Not Tortious Inteference

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A brief note this Saturday morning…

Conversations around my last post, about FTC taking action on anti-competitive Code of Ethics provisions, have raised an interesting and salient point. The best example comes from the comments, where Brian Rayl writes:

Despite what the FTC states in terms of “soliciting other’s clients” there are very strict laws – federal laws – that prohibit interfering with a contract.

http://en.wikipedia.org/wiki/Tortious_interference

If someone is going down a list of new listings and contacting them with the intention of damaging the contractual relationship, they are guilty of tortious interference. I’m not sure why the FTC would require the code of ethics to allow this when the federal government doesn’t? What are your thoughts on that?

My thoughts are that tortious interference with contract requires a tort. Obviously, what is about to follow is legal mumbo-jumbo, which I do for fun as a blogger with a law background. Please consult your own attorney or counsel; this is not legal advice.

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The NAR Code of Ethics is Illegal (Probably)

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I got a heads-up from a source, which then led me to investigate further, and… unless there’s something I am missing, the NAR Code of Ethics is (probably, in all likelihood) illegal as it stands today. It will need to be rewritten.

News from federal regulators rarely make the front page. In fact, they rarely make any page of any newspaper unless it’s a Really Big Deal, and few regulatory actions are that. But… last month, the FTC (Federal Trade Commission) entered into a consent decree with the National Association of Residential Property Managers that should be sending shockwaves throughout the ranks of REALTOR Associations.

From the official Press Release:

The FTC’s complaint against NARPM, which represents more than 4,000 real estate managers, brokers, and agents, alleges that NARPM and its members restrained competition in violation of the FTC Act through provisions in its code of ethics that restrict comparative advertising and solicitation of competitor’s clients. The provisions read, “The Property Manager shall not knowingly solicit competitor’s clients,” and “NARPM Professional Members shall refrain from criticizing other property managers or their business practices.”

The proposed consent order settling the FTC’s charges requires NARPM to stop restraining its members from soliciting property management work, and from making statements that are not false or deceptive about a competitor’s products, services, or business or commercial practices. NARPM also must implement an antitrust compliance program, among other things.

As all REALTORS know (or should know, if they are members of NAR, and therefore subject to the Code of Ethics), those two provisions are exactly equivalent to the Code of Ethics Article 16 and similar to Article 15.

Given the similarities involved in the NARPM case and as-yet-unfiled NAR case, I assume the only issue will be whether NAR proactively changes its Code of Ethics, or waits for the FTC to file a complaint. But as it stands today, the Code of Ethics is an illegal violation of anti-trust laws.

A quick dive into the issue…

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