A petition by the National Association of REALTORS® (NAR) to the Supreme Court in an ongoing MLS-focused antitrust lawsuit was denied this week without comment, sending proceedings back to the lower court and allowing an antitrust lawsuit filed by a pocket listings startup (now known as TheNLS.com) to continue.
The lawsuit, filed back in 2020, alleges that NAR’s “clear cooperation” policy, which requires REALTORS® to put properties on REALTOR®-controlled MLSs, is anti-competitive and violates antitrust laws.
“We are disappointed the Supreme Court has decided not to hear our appeal,” said NAR VP of Communications Mantill Williams in a statement. “Regardless, we look forward to presenting our position at trial and remain confident we will ultimately prevail.”
TheNLS.com did not immediately respond to a request for comment.
After the lawsuit was dismissed by one federal judge, and then revived by the U.S. 9th Circuit Court and allowed to proceed, NAR appealed to the Supreme Court last September, asking it to review the case. The summary denial of that request is another blow to NAR (and major MLSs also named in the lawsuit).
With the Supreme Court declining to intervene, the case is now likely headed to trial, with both sides set to make their cases with huge implications for the industry.
“As a practical matter, it is impossible to compete effectively as a real estate agent unless one signs up for MLS membership; a buyer needs access to sellers and a seller needs access to buyers,” TheNLS.com (which was formerly known as The PLS) states in its lawsuit. “As a result of that market power, MLSs impose significant restrictions on their members and members have little choice other than to comply.”
NAR has argued the “clear cooperation” and the MLS landscape in general is pro-consumer, promotes competition and provides consistent and transparent real estate data. Williams added that he believes that the policy “ensures that publicly marketed property listings are widely available and accessible to all consumers.”
“At their foundation, antitrust laws were enacted for ‘the protection of competition, not competitors,’’’ NAR wrote in its petition to the Supreme Court. “PLS’ core complaint is that NAR’s Clear Cooperation Policy…hurts PLS’ business model. This complaint is premised on keeping information from most buyers and sellers while providing exclusive information to a select slice of the housing market.”
NAR is currently facing a variety of other lawsuits, and an investigation by the Department of Justice, also focused on alleged anti-competitive practices.
