A lawsuit filed by a pocket listing startup targeting the National Association of REALTORS®’ (NAR) Clear Cooperation policy appears to be moving forward after other major developments shifted the legal landscape, with plaintiffs saying in a recent court filing that NAR’s commission lawsuit settlement and a recent appeals court ruling involving the Department of Justice (DOJ) have “impacted” the case.
The lawsuit, which was filed by a company called Top Agent Network (TAN) back in 2020 and names NAR and the San Francisco Association of REALTORS® (SFAR), was dismissed three separate times before being revived along with a similar pocket listing case in 2023.
Before NAR’s settlement agreement, there were indications that TAN was on the path to settlement as well, with both plaintiffs and defendants asking for an indefinite pause in proceedings and parties discussing a “resolution” of the case as recently as Jan. 29, according to court documents.
All that appears less likely now, however, with plaintiffs pushing for a trial in October 2025, and noting that the DOJ previously intervened on their behalf as regulators appear poised to relaunch a separate investigation into “clear cooperation.”
“Plaintiff also believes that a recently announced settlement agreement, following a $1.8 billion jury verdict Burnett v. National Association of REALTORS® et al. may impact this case. Burnett also involves NAR’s conduct with regard to attempts to regulate off-MLS activity,” reads the most recent filing. “Defendants contend that the jury decision in Burnett…and the D.C. Circuit’s decision in (the DOJ case) covered different issues than this case and are unrelated to this Court’s dismissal of TAN’s claims.”
In an emailed statement, Paul Llewellyn, a lawyer representing TAN in the case, told RISMedia that “(w)e are not at liberty to discuss any settlement talks that may or may not have taken place between TAN and NAR.”
“We are not privy to the (DOJ) Antitrust Division’s plans. With regard to the commissions verdict and settlement, among other things, we think it’s clear that having such massive payments and substantial rule changes looming over NAR will impact our case, which also seeks damages and rule amendments,” Llewellyn said.
NAR did not immediately respond to a request for comment.
Both pocket-listing suits were filed by companies who claimed that NAR used the “clear cooperation” policy—which requires that agents list properties on NAR-affiliated MLSs—to steer agents away from using competing platforms, in violation of antitrust laws.
The other pocket-listing suit, known as PLS.com v. NAR (which named large MLSs along with NAR) settled earlier this year.
The DOJ specifically targeted “clear cooperation” in an antitrust investigation that was shuttered back in 2020 but revived by an appeal’s court decision last week. While NAR has independently changed or withdrawn many of the rules that the DOJ initially accused of having anti-competitive effects, “clear cooperation” has remained untouched.
TAN’s lawsuit is not directly affected by the NAR settlement as it is not related to commissions. Instead, TAN alleges NAR and SFAR adopted and enforced “clear cooperation” out of fear that companies like TAN threatened an alleged monopoly that NAR-affiliated MLSs have in the listing service space.
“NAR intended for (clear cooperation) to coerce agents against using TAN,” the initial lawsuit claims. “NAR officials have been explicit that an intended purpose of (clear cooperation) is to eliminate TAN as a competitor.”
The possibility of those claims being argued in front of a jury appears to be higher now, although there are still issues to be worked out. The process by which TAN’s lawsuit was revived is still being questioned by NAR and SFAR, with both requesting a further delay in the case until the judge can consider the exact impact of the appellate court’s order which remanded the case back to the district judge.
A three-judge panel from the Ninth Circuit ruled both on this case and the PLS.com case, which was also initially dismissed. In a short memorandum issued August of 2023, the Ninth Circuit judges said simply that the PLS.com case—which they had recently revived—was similar enough to TAN’s lawsuit to justify overturning its dismissal as well, without a full briefing.
“Because the facts of PLS.com are sufficiently analogous to the facts as alleged here, we vacate the district court’s order and remand Top Agent’s claims for reconsideration under PLS.com,” they wrote.
NAR and SFAR are requesting that before the district judge moves forward with the TAN case, he allows them 30 days to file their own legal arguments regarding “the impact, if any” of the Ninth Circuit’s memo on the lawsuit.
Simultaneously, both defendants “contend that the deadlines requested by TAN are unreasonable and shorter than similar cases.”
Editor’s note: This story was updated with comments from TAN at 1:41 p.m. Eastern Time.
