National Association of Realtors' antitrust challenge rejected by U.S. Supreme Court

The U.S. Supreme Court building is pictured in Washington
The U.S. Supreme Court building is pictured in Washington, U.S. March 15, 2022. REUTERS/Emily Elconin/File Photo
  • Justices keep 9th Circuit order in place, reviving claims
  • National Association of Realtors says policy benefits consumers

(Reuters) - The U.S. Supreme Court on Monday declined to hear the National Association of Realtors' challenge to a lower court's ruling that said an upstart real estate platform can pursue antitrust claims against the trade group.

The justices, without comment, left in place a ruling last year against the real estate association by the 9th U.S. Circuit Court of Appeals. The San Francisco-based appeals court revived claims from listing service LLC that the trade association's "clear cooperation policy" harmed competition.

A spokesperson for the Chicago-based Realtors association said it was "disappointed" the Supreme Court declined to hear its case. "Regardless, we look forward to presenting our position at trial and remain confident we will ultimately prevail," Mantill Williams said.

Adam Gershenson of Cooley, a lawyer for the trade group, did not immediately respond to a message seeking comment.

Jenner & Block's Douglas Litvack, a lawyer for PLS, which now operates under LLC, declined to comment. A spokesperson for PLS was not immediately reached for comment.

National Association of Realtors (NAR) members own or control most of the country's multiple listing services, which are databases that agents and buyers use to find homes on the market.

PLS in 2017 launched an alternative database of "pocket listings" of houses that owners could more discreetly market, publicly sharing less information than otherwise would be required.

Demand for such houses "skyrocketed" in Washington, D.C., Miami, San Francisco and other markets in recent years, PLS attorneys said in court filings.

Lawyers for PLS said NAR-affiliated listing services saw the new platform as a threat. NAR adopted a "clear cooperation policy" in 2019 to require homes disclosed on PLS to also post on a multiple listing service within 24 hours.

PLS sued the real estate trade group in 2020 in Los Angeles federal district court. The complaint seeks damages for lost profits and an order blocking enforcement of the cooperation policy.

"Rather than compete on the merits with an upstart, MLSs conspired to destroy it," attorneys for PLS told the justices in a filing in December. The lawyers, including Douglas Litvack of Jenner & Block, said "it would be hard to fathom a more obviously anticompetitive agreement" than the cooperation policy.

Attorneys for the National Association of Realtors told the justices that the 9th Circuit panel misapplied Supreme Court precedent.

NAR's lawyers also said the PLS platform harmed consumers.

"PLS wants to pursue a business model that would harm buyers and sellers by injecting more exclusivity and secrecy into the home buying process through 'pocket listings' showed only to a privileged few," Gershenson wrote.

He said NAR's policies "ensure consumers' widespread access to market information."

The case is The National Association of Realtors v., U.S. Supreme Court, No. 22-289.

For The National Association of Realtors: Adam Gershenson of Cooley

For Douglas Litvack of Jenner & Block

Read more:

Realtors group wants U.S. Supreme Court to undo antitrust order

Court rehabs exclusive listing service's antitrust lawsuit v. Realtors' group

(NOTE: This story was updated with comment from the National Association of Realtors.)

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