Top Agent Network’s NAR Lawsuit Dismissed for Second Time

The case by Top Agent Network against the National Association of Realtors has been dismissed again.

The private listing service and the industry trade group agreed to the dismissal of the lawsuit without prejudice, Inman reported. That means David Faudman’s TAN could refile the suit, which alleged NAR’s Clear Cooperation Policy is anti-competitive and violates antitrust law, down the line.

“This pause will allow NAR to continue to deliberate the future of the Clear Cooperation Policy, including any possible interpretations or modifications,” the parties said in a joint statement. TAN declined to say if any money changed hands or if it would refile the lawsuit.

Litigation between NAR and TAN dates back to 2020. The private listing service filed its lawsuit in May 2020, the same month NAR adopted its Clear Cooperation Policy, which requires listings to be placed on a Multiple Listing Service within a day of being publicly marketed.

TAN agents claimed homesellers deserved more options than the rule allowed. But the lawsuit was dismissed the following year, with prejudice, because TAN’s business model allegedly had anticompetitive concerns of its own.

TAN appealed and in 2023, an appeals court vacated the decision of the lower court. The lawsuit was reopened by the end of the year and the judge granted TAN’s motion for reconsideration last July, saying the service demonstrated sufficient injury from the policy’s alleged anticompetitive effects.

Only the anticompetition portion of the lawsuit was brought back from the dead. The other part of the original complaint alleging intentional interference with a contract remained sidelined.

Three months ago, TAN freed another defendant, the San Francisco Association of Realtors, from the lawsuit.

While another legal impediment may be gone, NAR’s Clear Cooperation Policy remains under fire. Major players in the residential sector have pushed for the industry group to do away with the policy, which the association is considering.

Those in favor of abandoning Clear Cooperation argue that sellers should be able to market homes on their own terms, and that there are reasons a required MLS listing could hurt a seller.

Proponents, however, claim it’s a critical defense against housing discrimination.

— Holden Walter-Warner