Two weeks ago, the Supreme Court delivered a blow to the National Association of Realtors by allowing a “pocket listings” lawsuit to proceed. Now the Department of Justice is jumping into a similar case involving the trade group.
The agency is preparing to file an amicus brief supporting Top Agent Network’s lawsuit against NAR, Inman reported. Top Agent Network is appealing a decision in the case that favored Realtor associations.
The Department of Justice, which has been involved in real estate antitrust cases in recent years, said it may weigh into the case as a neutral party. But it also might support the plaintiffs as it seeks to maintain a competitive marketplace.
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In May 2020, Top Agent Network filed a federal lawsuit challenging the real estate agent trade association’s Clear Cooperation Policy, a rule designed to eliminate pocket listings. DOJ is investigating the rule, a probe NAR sued to end. The agency nearly settled the case but changed its mind in 2021 to continue its inquiry.
Top Agent’s lawsuit alleges NAR and two other Realtor associations violated antitrust and unfair competition laws with the Clear Cooperation Policy, which requires listing brokers to submit a listing to their MLS within one business day of marketing a property.
A district court judge found the suit made a “reasonable argument” against the policy, but ruled against Top Agent anyway because the company’s business model was itself anti-competitive, as it restricts membership to top echelon of agents.
TAN recently filed the opening brief in its appeal, claiming NAR’s policy restricts consumer choice.
NAR has defended the policy, arguing it is essential to protect consumers by giving them access to information about market conditions.
This month, the Supreme Court denied NAR’s petition asking it to review the lower court’s ruling. The decision allowed a pocket listing case from the PLS — now known as the NLS — to proceed. The Justice Department filed an amicus brief in that case as well.
— Holden Walter-Warner