1, 2006), available at http://www. realtor.org/mempolweb. nsf/pages/code. 46. Whatley, Tr. at 30. 47. Hahn, Tr. at 32. Hahn's issues are more fully developed in his AEI-Brookings Paper, where he describes how the cooperative relationship among brokers in an MLS has the potential to give rise to harmony in services supplied and brokerage fees charged.
Other experts have actually expressed similar views (how much do real estate agents make a year). See Lawrence J. White, The Residential Property Brokerage Industry: What Would More Vigorous Competition Appear Like? 6 (New York University School of Law, New York City University Law and Economics Working Documents 51, 2006); GAO REPORT, supra note 3, at 3, 12-13 (MLS might motivate rate conformity by, for instance, by requiring that each listing state the fee split that the complying broker will receive.
48. Hahn, Tr. at 32-36. 49. See Whatley, Tr. at 31 (" The MLS is strategically one of the most valuable things to me"). 50. NAR, Public Comment 208, at 5 (comment). Throughout this Report citations to "Public Comments" refer to comments sent in reaction to the Agencies' Federal Register Notice welcoming talk about the subjects resolved at the Workshop.
Reg. 53,362 (Sept. 8, 2005). The general public comment numbers pointed out in this Report describe those found on the FTC's site. Some parties sent a cover letter with the public remark. Citations to submissions by these celebrations include a parenthetical recommendation either to the "remark" or the "cover letter." The general public remarks are available at http://www.
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htm and http://www. usdoj.gov/ atr/public/workshops/ reworkshop_rewcomments. htm. See likewise Whatley, Tr. at 160- 61 (although the Internet offers beneficial details to purchasers and sellers of property, by the time residential or commercial properties are marketed on the Web, they might be gone currently; therefore, the MLS is essential). 51. John H. Crockett, Competition and Performance in Negotiating: The Case of Residential Real Estate Brokerage, 10 JOURNAL OF THE AMERICAN REAL ESTATE AND URBAN ECONOMICS ASSOCIATION 209, 211 (1982 ).
See NAR 2006 SURVEY, supra note 4, at 77. 53. 1983 FTC STAFF REPORT, supra note 9, at 31. 54. See United States v. Realty Multi-List, 629 F. 2d 1351, 1370 (5th Cir. 1980) (subscription in the MLS ends up being important to a broker's ability to compete successfully on equal terms); GAO REPORT, supra note 3, at 12.
South Central Wisconsin MLS Corp., 450 F. 3d 312 (7th Cir. 2006); Thompson v (how do real estate agents make money). Metropolitan Multi-List, Inc., 934 F. 2d 1566 (11th Cir. 1991). 55. See Whatley, Tr. at 39-40. 56. White, supra note 47, at 4. According to NAR, the MLS has been especially advantageous to smaller sized brokers, because it "levels the playing field" on which brokers compete.
through the regional or regional [MLS]"). See likewise Yun, Tr. at 223-24 (describing how the MLS puts small and big brokers "on equal footing"). 57. See, e. g., William C. Erxleben, In Search of Cost and Service Competitors in Residential Realty Brokerage: Breaking the Cartel, 56 WASH.
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L. 179, 184-185 (1981 ); Crockett, supra note 51, at 211. For a discussion of the positive network results associated with MLSs, see 13 HERBERT HOVENKAMP, ANTITRUST LAW 2220b4, 2223b3 (2d ed. 2005): A genuine estate numerous listing service may likewise undergo network externalities. As each realty broker is contributed to the system the effects are (1) that the new broker is entitled to offer your homes noted on the system by other members, thus increasing the opportunities of sale; and (2) existing members are entitled to offer your homes listed by the new broker, therefore providing each broker a larger inventory of houses to reveal.
As a result, the majority of towns have a single numerous listing service, and essentially all property brokers other than perhaps a couple of highly specialized ones are members. Id. 2220b4, at 343. 58. See, e. g., Reifert, 450 F. 3d at 317; Metropolitan Multi-List, 934 F. 2d at 1579-80; Realty Multi-List, 629 F. 2d at 1356.
Realty Multi-List, 629 F. 2d 1351 (5th Cir. 1980). 60. Id. at 1356. 61. Id. 62. Id. 63. Id. at 1369. Subsequent decisions mainly have actually followed this approach. See, e. g., Metropolitan Multi- List, 934 F. 2d at 1579-80; Austin Bd. of Realtors v. E-Realty, Inc., No. Civ. A-00-CA-154 JN, 2000 WL 34239114, at * 4 (W.D.
Mar. 30, 2000). A discussion of the numerous personal litigation involving alleged MLS-related restraints is beyond the scope of this Report. 64. Realty Multi-List, 629 F. 2d at 1373-74 (citing A. Austin, Property Boards and Multiple Listing Systems as Restraints of Trade, 70 COLUMBIA L. REV. 1325, 1346 (1970 )); accord Metropolitan Multi-List, 934 F. 2d at 1580 (" Market power turns on the number of brokers who utilize the service, the overall dollar quantity of yearly listings, and a contrast of the rate of sales using the multilisting service to the market as a whole."); see also, e.
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South Central Wisconsin MLS Corp., 450 F. 3d 312, 317 (7th Cir. 2006) (" In short, it is impossible to perform the tasks of a property representative or appraiser in the pertinent geographical area without utilizing [the defendant MLS] Hence, it possesses enough market power to restrain competitors."); Austin Bd. of Realtors, 2000 WL 34239114, at * 4 n.
65. There is some overlap between the categories due to the fact that specific service models fit into more than one category. For instance, a VOW operator might or might not also be a discount rate broker. 66. See GAO REPORT, supra note 3, at 19. 67. We refer to all such rebates and inducements usually as "rebates" throughout this Report.
68. See 1% Real Estate, Purchasing a New Home, http://www. onepercentusa.com/buy. htm (last visited Mar. 27, 2007). 69. See, e. g., Glenn Roberts, Jr., "Secret Agents" Quietly Deal Genuine Estate Rebates, INMAN NEWS, Mar. 7, 2006 (explaining secret https://gumroad.com/jeniusutky/p/how-much-do-real-estate-agents-make-per-sale-can-be-fun-for-anyone-f4177532-f421-4984-a1f3-db6a65ed4cfc property agent referral service operating in Maryland, Virginia, and the District of Columbia that provides outside of the settlement and thus off the books sellers a 1.
5%). 70. Henderson, Tr. at 155. 71. See, e. g., Rules and Laws of North Texas Real Estate Info Systems, Inc. 5. 01-5. 02 (changed Sept. 21, 2005), readily available at http://www. ntreis.net/documents/Documents_262006124924. 72. See, e. g., FSBOAdvertisingService. com, Houston Texas Real Estate Agent Flat Charge Additional resources MLS, http://www. fsboadvertisingservice.com/flat-fee-mls-MLSTX3. asp (last visited April 20, 2007) (2-3 percent commission for broker that finds a buyer); ifoundahome.
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ifoundahome.net/Listingwork/SBasicListing. htm (last gone to April 20, 2007) (permitting house sellers to offer "a 3% commission or more" to purchasers' brokers); TexasDiscountRealty. com, Flat Cost Listing, http://www. texasdiscountrealty.com/flatfee. htm (last visited April 20, 2007) (3 percent commission for a broker that discovers a buyer). 73. REALTOR.com, http://www. realtor.com (last checked out April 20, 2007) (according to its website, REALTOR.com is the "Authorities Website of the National Association of REALTORS").
See Farmer, Tr. at 107-08. 75. See TexasDiscountRealty. com, House Sellers, http://www. texasdiscountrealty.com/sellers1. htm (last checked out April 20, 2007). 76. See Kunz, Tr. at 101 (noting that a number of types of service models operate under the Century 21 franchise). 77. See GAO Report, supra note 3, at how to legally get out of your timeshare 19-20. 78. See Testament Summary of Russell Capper, President and Chief Executive Officer, eRealty, Inc.