The National Association of Realtors’ Clear Cooperation Policy is here to stay. For now.
The members-only agent group, Top Agent Network, has been dealt another legal blow in it’s ongoing case against NAR, the California Association of Realtor and the San Francisco Association of Realtors, as a U.S. district court in California dismissed TAN’s complaint with prejudice.
The matter at hand: the Clear Cooperation Policy, which requires listing brokers to submit a listing to their multiple listing service (MLS) within one business day of marketing a property to the public. In other ones, limit pocket listings.
According to Inman, TAN has long alleged that by enforcing such a policy, NAR, CAR and SFAR are violating antitrust and unfair competition laws. Following a number of court challenges last year, TAN was required to submit an amendment—their third—to their original suit highlighting antitrust violations. TAN reportedly focused in on the policy’s carve-out for office exclusives, which allows brokers and licensees of a listing brokerage to promote a listing within the brokerage and to that brokerage’s clients without having to submit publicly to the MLS.
Last week, the judge in the case dismissed the complaint with prejudice (permanently), though TAN could appeal the decision.
In his order, U.S. District Judge Vince Chhabria said that TAN’s complaint had laid out “a reasonable argument” that the policy “is so broad that its overall effect on the market for homes is anticompetitive.”
“The Policy leverages NAR’s control of the real estate market to coerce most agents into giving up their off-MLS activities entirely, without regard to the competitive value of those activities,” Chhabria wrote, as reported by Inman.
“The complaint plausibly alleges that the Policy, by forcing those consumers to choose between the MLS and a problematic in-house transaction at a large brokerage, reduces consumer choice and stymies competition among agents for off-MLS sales,” Chhabria continued. “While not as clear-cut as concerns about super-competitive pricing, these kinds of harms are also the concern of antitrust law.”
However, the judge concluded that ultimately TAN is the wrong plaintiff in such a case as the policy in question enhances parts of TAN’s own business model that make it anticompetitive.
You can read more on the case from Inman by clicking here.