Realtor group beats back antitrust lawsuit over home-listing service

REUTERS/Lucy Nicholson
  • Plaintiff Top Agent Network didn't show how rival's home listing policy violated law, judge found
  • Quinn Emanuel team represented defendant National Association of Realtors

Aug 17 - A California federal judge has dismissed an antitrust complaint alleging the real estate listing service operated by the National Association of Realtors (NAR) and its local chapters unlawfully required agents to post houses for sale or risk losing access to the marketing platform.

U.S. District Judge Vince Chhabria ruled Monday that the plaintiff, Top Agent Network Inc (TAN), which runs a competing but smaller home-listing service, had failed to show how the NAR policy violates antitrust law.

Most home sales in the U.S. are listed on NAR's local "multiple listing service," a subscription database showing houses for sale in a market. Top Agent Network was founded in 2010 as a more narrow listing service for only high-volume agents. The network said it should be allowed to post homes for sale on its service that do not otherwise appear on the larger one NAR operates.

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"It may well be that NAR's policy has anticompetitive effects. But it is not anticompetitive to the extent that it prevents members of an exclusive listing service like TAN from concealing listings from NAR's subscribers while simultaneously benefiting from access to NAR's service," Chhabria said in Monday's ruling.

A lawyer for Top Agent Network, Paul Llewellyn of San Francisco's Lewis & Llewellyn, on Tuesday expressed disappointment with the ruling but noted "the court clearly has concerns about the potential anticompetitive nature of the policy."

"We strongly believe that the policy is bad for consumers and bad for the public, and it's only a matter of time before this ill-advised rule is repealed or struck down," Llewellyn said. "We are exploring all available options to challenge this anti-competitive policy."

The National Association of Realtors is represented by Ethan Glass of Quinn Emanuel Urquhart & Sullivan, who did not immediately respond to a request for comment.

A spokesman for NAR, Mantill Williams, on Tuesday called Chhabria's ruling an "example of courts finding that independent, local broker organizations benefit competition through open markets by providing transparency that enables price and quality comparisons across all listings within a market."

Top Agent Network sued NAR in U.S. District Court for the Northern District of California in May 2020. The complaint alleged that NAR and two regional affiliates--the California Association of Realtors and the San Francisco Association of Realtors--were "conspiring to shut down competition." The lawsuit accused the national real estate association of "abusing its market dominance."

The lawsuit sought damages for alleged lost profits, and it asked Chhabria to issue an injunction against the NAR listing policy at the center of the suit.

NAR's lawyers at Quinn Emanuel said in a motion to dismiss in June that Top Agent Network "has not been cut off from anything (in fact, it is TAN who seeks to cut off multiple listing service members from access to listings)."

Chhabria said NAR's listing service offered "procompetitive benefits of open information." NAR's listing policy, the judge said, "keeps listings available to a much larger audience of agents and their clients."

Responding to the ruling, Top Agent Network chief executive David Faudman said NAR's policy "is bad for agents and bad for consumers and is just another anticompetitive attempt by the NAR to use its monopoly power to crush market alternatives."

The case is Top Agent Network Inc v. National Association of Realtors, U.S. District Court for the Northern District of California, Case No. 3:20-cv-03198-VC.

For the plaintiff: Paul Llewellyn of Lewis & Llewellyn

For the defendant: Ethan Glass of Quinn Emanuel Urquhart & Sullivan

Read more:

U.S. Justice Department withdraws from settlement; launches probe of realtors

Zillow, National Association of Realtors face private antitrust lawsuit

(This story was updated to include comment from David Faudman of Top Agent Network.)

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