On October 4, 2013 I had the privilege of attending the legal seminar sponsored by the Legal Affairs Department of the National Association of Realtors®. At this exceptional forum for attorneys who represent Realtor® associations and their state associations, Associate General Counsel Ralph Holmen presented the material on antitrust law. He reminded all attendees that the Department of Justice and National Association of Realtors® stipulation of settlement regarding virtual office websites included a commitment that National Association of Realtor® member boards and their counsel would receive annual updates regarding antitrust law including information about the “final judgment” agreed upon by both sides. This article will address certain potential violations of the antitrust law which appear to be applicable to Realtors® and Realtor® firms in the current environment. These are:
1. Group boycotts; and
2. Tying arrangements
What is a Group Boycott?
A group boycott is what is known as a “per se” (on its face) violation of the antitrust laws. What it amounts to is an effort by a group or even just two separate Realtor® entities to engage in discussions involving a refusal to deal with a particular party. When two or more separate business enterprises agree that they will refuse to deal with a newspaper, another competitor, an MLS or a lockbox vendor, the two parties are deemed to be engaged in a group boycott. In most instances, the objective is to enforce a change in the behavior of the targeted entity or to attempt to drive that entity out of business. Despite the “intentions” of the parties engaged in the discussion to be procompetitive, group boycotts are still considered a “per se” violation. The alleged conspirators would be conducting themselves in an illegal manner.
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