NAR nightmare continues as pocket listing suit resurfaces

Top Agent Network appeal revives case

National Association of Realtors’ Pocket Listing Suit Revived

From left: NAR president Tracy Kasper and Top Agent Network CEO David Faudman (Photo Illustration by Steven Dilakian for The Real Deal with Getty, NAR, LinkedIn/David Faudman)

Incoming National Association of Realtors president Tracy Kasper’s first day on the job began with more bad news for the organization. 

The U.S. Court of Appeals ruled against NAR on Monday, reviving an antitrust lawsuit regarding the trade group’s policy on pocket listings, Inman reported. The successful appeal by private listing service Top Agent Network will send its lawsuit back to the district court.

TAN’s federal lawsuit dates back to May 2020, when it challenged NAR’s Clear Cooperation Policy, a measure aimed at curbing pocket listings. The lawsuit alleged NAR and two other realtor associations violated antitrust and unfair competition laws by requiring listing brokers to submit a property to their respective MLS within one day of marketing a home.

A district court judge found the suit’s argument against the policy to be reasonable, but still ruled against Top Agent, saying that the business was itself anti-competitive due to its restriction against agents who aren’t among the top performers.

The Department of Justice filed an amicus brief in support of Top Agent’s appeal in March. It also received permission to make an oral argument in the appeal, though that didn’t factor into the appeals court’s decision.

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Instead, the biggest factor working in Top Agent’s favor was a previous decision in favor of, which also challenged the pocket listing policy. The same appeals court heard that argument and the judge decided the cases were similar enough to warrant a similar ruling; case is ongoing.

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Top Agent’s chief executive officer applauded the decision of the appeals court, in an email to Inman. NAR, meanwhile, didn’t immediately comment on the case.

It’s one of several legal fires NAR is trying to put out. The trade group recently filed motions to suppress evidence regarding another case unfolding in Kansas City, which is set to go to trial in October. That case has drawn the attention of residential real estate players, as it could upend the industry’s commissions model.

On top of that, former NAR president Kenny Parcell resigned on Monday after a New York Times investigation detailed a pattern of alleged misconduct and sexual harassment at the organization. Parcell denied wrongdoing in his resignation letter.

Holden Walter-Warner