Now that the attorneys have been awarded nearly $1 billion, I believe we are going to see a lot more attorneys come out the woodwork to try to find additional vulnerabilities in our policies and procedures/traditions. I believe the attorneys and DOJ are just getting warmed up. Here’s one potential vulnerability that keeps me up at night….

In many of the proposed Franchise and Brokerage Settlements, those real estate companies can no longer require NAR membership. At the same time, NAR policy dictates that if a broker is an NAR member, all of their agents must also be NAR members.

Here’s what I worry about…. What if a broker involved with one of the settlements has an agent that does not want to be a REALTOR®?  Does the Broker adhere to the terms of their company’s settlement and not require REALTOR® membership or do they follow the requirements of their local Association and force their agent to a member to adhere to NAR Policy?  While some brokerages get around this requirement today by setting up separate referral companies, how do they handle the situation when one of their top producers refuses to join their local, state and national association?

Now here’s what could get even stickier.  What if a broker-REALTOR® from Brokerage X that is NOT part of one of the large company settlements requires their top producer to be a REALTOR. That top producer comes to their broker and tells them they no longer want to be a REALTOR. They tell their manager from Brokerage X they are being recruited by Brokerage Y who is prohibited from requiring NAR membership. The top producer moves from Brokerage X to Brokerage Y. The brokerage adhering to NAR policy loses a top producer because of an NAR policy. What kind of trouble do we believe that might cause in our industry?

With brokers now suing NAR, and local MLSs and Associations over other policies they believe are coercive, I think we need to look at every rule that could be perceived as anti-competitive in any way and get rid of them as soon as we can. I believe every market needs to get serious about offering an Open MLS, eliminating restrictive Lockbox policies and seriously look at the conflict discussed in this article. I am not sure how many more lawsuits our industry can handle at this point. Let’s get proactive before it’s too late.