An editorial plus some:

A right delayed is a right denied.
--Martin Luther King, Jr.

It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.
--Sherlock Holmes
in A Scandal in Bohemia by Sir Arthur Conan Doyle

During my senior year at Cornell I went to see The Gypsy Moths. I remember its plot and climactic scene as follows: Visiting a small town with his skydiving show, Mike (played by Burt Lancaster) has an affair with Elizabeth, a local woman caught in a loveless marriage and the boredom of small town life (played by Deborah Kerr). Mike is a guy who loves his work and nomadic life but when Elizabeth rejects his request to run away with him after his show, he becomes despondent. The next day for the finale, Mike is set to perform the "cape jump", a stunt his partner Joe (played by Gene Hackman) announces to the crowd as "so special" that "no one else in the world will do it". As the depressed Mike plummets toward earth he neglects to pull the ripcord and slams into the ground to the horror of everyone. I saw this movie with some friends and about 10 seconds into the stunned silence that followed impact one of them remarked aloud, "No wonder he's the only one in the world who does it!". For me it offered a new interpretation of the old Confucius saying, "Find work that you love and you will never work another day in your life."

But seriously folks, I do love my job and welcome the chance to pull the ripcord every day. What I
don't like is when others seek a business advantage by tampering with my parachute rather than developing a better stunt on their own to draw the crowds. Ultimately these zero-sum gamers stop a productive dialectic, and deprive the consumer of experiencing the benefits innovation brings. Please understand, I'm no libertarian seeking laissez-faire. I respect good laws and other necessary interventions, and even more the spirit behind them; it's seeing behavior that might run contrary to anti-trust and other statutes that has me concerned.

About six years ago--when the net was young--some techies came up with the idea of offering prospective buyers MLS information online. Establishing this cyber face-to-face introduced a new business model for the brokerage industry and a new level of transparency. Up until then, brokers who were members of an MLS would have customers come to their office and sit down with them in front of the computer, enter a search and view the properties that came up. Alternately, if the information were in a listing book that was issued monthly (with printed addenda sent out weekly), they would sit at a conference table with their customers and leaf through the listings together. Now, this newer online model was easier to use and was "Virtual", i.e. it used a similar procedure but via the internet--and the "Virtual Office Website" (VOW) was born. (I wouldn't say this constituted a paradigm shift per se, but was more a "mopping-up" operation; however, witnessing the high drama and turmoil that's arisen, you'd think we had entered the "preparadigmatic stage" Kuhn speaks of).

What followed all this was a clash between the Department of Justice and the National Association of Realtors. NAR was accused of applying a double standard to these e-brokers who were seen as threatening the status quo. Ultimately, the directives handed down in the DOJ's Final Judgement were true to the traditions of consumer protection, de jure rights in business, and a sense of fair play. It's our job to recognize and respect the principals behind their decision and prevent the unconverted from grabbing the ball and making an end run.

For some reason NYC has remained not only one step behind, but two. We still don't have a true and significant MLS, and for some today, VOW's growth and development could end up fettered like that of a child locked in an attic for many years. If events had followed a natural evolution without undue influence I believe neither would be the case. I often suspect some positive advancements that time would normally yield have been forcefully displaced by not-so-intelligent design.

So, here's a chance to make-up for lost opportunities and move in a better direction. Most of us are ready to take these two steps. If there are any out there who would try to inhibit the establishment of these models and the tools they offer to our buyers and sellers, or orchestrate with any bias or favoritism who is going to use them, they are jeopardizing the public trust and working contrary to the Department of Justice's essential thesis.

This is the extent to which I will express my own feelings on the matter but I can share what others--many others--have said to me, and their interpretation of recent events:

Taking its cue from DOJ v. NAR, The Real Estate Board of New York is trying to apply certain features outlined in the DOJ's Final Judgment to the database being shared by REBNY's members.  The REBNY Listing Service, or RLS for short, is not a true MLS and many firms feel REBNY may be overstepping its bounds and authority in this matter by introducing some policies outside the DOJ's intent. These policies lack rationality and demonstrate technical naivete hiding behind an administrative mask. Proceeding with no ownership of listing data or content, REBNY is requiring its members to sign a VOW agreement relating to information owned by its individual members but outside of REBNY's domain. If all this agreement's conditions meet the standards established by the DOJ and are agreeable to and among the firms themselves, then good function exists, but if unlikely and unprecedented features are being inserted, are onerous, and carry unreasonable requirements, then revisions must be made.

To be specific, the REBNY VOW Agreement calls for "random audits" above and beyond the initial audits required of every VOW application, and assigns financial responsibility for these extra audits to the participant being audited. This is the case even if the VOW software being used is authored, supplied and hosted by an outside service, is unmodifiable by the participant, and has
already been audited. By introducing an inescapable threat of possible financial liability that's randomly applied, many feel REBNY is discouraging or preventing some firms from using this software. Everyone I've spoken to understands the reasoning behind an initial audit of new software, and the need to audit firms suspected of violating the rules for VOWs, but since it is their own intention to abide by the rules, they feel it's inappropriate to be held responsible for extra audits that are arbitrarily generated. Ultimately, REBNY, by creating and forcing this scenario, in effect, and in a biased way, is restricting some firms from adding this software to their websites. One firm owner put it this way, "we are not athletes to be randomly selected for testing in a sport inundated with illegal performance enhancing drugs, and besides, in the few situations where random audits occur (like with the IRS) the cost is assumed by whoever orders the audit."

I personally can't speak to intent nor its importance in all this, but in any case the logic being presented in support of "random audits" simply makes no sense. I will note the DOJ's Final Judgement itself makes no reference to any "audits" of this kind, nor includes them as a legal requirement. Furthermore, a review of the VOW policies of MLS's throughout the country has yet to reveal the presence of such audits elsewhere. Clearly, fairness and good sense calls for alterations to be made to the REBNY VOW Agreement removing this unnecessary obstacle to real estate brokers pursuing a previously reviewed and acceptable business plan and a plan which, above all, benefits the consumer.

--Leigh Zaph. (any comments can be emailed to us at, thanks).