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NAR pockets win in resi listings antitrust case
Judge lets whisper listings ban go forward, but lets foes revise lawsuit
Top Agent Network has another shot to legally thwart the National Association of Realtors’ “pocket listings” ban even after a major setback in their case.
San Francisco federal judge Vince Chhabria granted Tuesday Top Agent Network’s stipulation to amend their anti-competitive complaint against NAR, the Washington, D.C. lobbying powerhouse that operates residential multiple listings services across the country.
Chhabria’s decision comes after NAR moved to dismiss the lawsuit, after the judge rejected Top Agent Network’s call to enjoin the pocket listings ban.
In May, the National Association of Realtors enacted their prohibition on pocket listings, that is homes marketed for sale privately but not put on the MLS, which is a publicly searchable database of residential listings.
Under the ban, National Association of Realtor members, which include most California residential sales agents, face fines and other penalties for not listing homes for sale on the MLS.
Top Agent Network, a service agents pay for to exchange information about potential sales, filed a lawsuit on antitrust grounds. The San Francisco-headquartered company claimed NAR exploited its monopoly power as the must-join group for agents, and made the MLS a monopoly of its own.
But Chhabria has initially found that argument unpersuasive.
The judge blocked earlier this month Top Agent Network’s motion for an injunction, writing that by filing its suit “in May instead of January” the company “called into question its assertion of irreparable harm.”
More than the questionable timing of the filing, Chhabria deemed Top Agent Network’s antitrust claim “unlikely to succeed.”
“Top Agent Network’s theories for how the policy hurts buyers and sellers are dubious,” the judge stated in a written order. “It is far more likely that the policy benefits buyers and sellers by increasing access to information about the housing market, thus increasing market efficiency and stimulating competition.
Shortly after the judge’s order, NAR filed a motion to dismiss the case.
“We are encouraged that the Court appears to agree that the policy benefits buyers and sellers by increasing access about the housing market,” NAR’s president Vince Malta said in a statement.
Chhabria gave Top Agent Network until Aug. 20 to file a revised complaint, and a company spokesperson said Wednesday they intend to proceed full-speed ahead with the lawsuit.
“We are very confident the amended complaint will leave no doubt as to the legal sufficiency of TAN’s claims,” adding, “We are confident a jury will agree with TAN.”