The National Association of Realtors logo and court background

DOJ may step into another NAR antitrust case 

The Department of Justice said it plans to file a brief in an appeal by the Top Agent Network over NAR's Clear Cooperation policy.

February 1, 2023
3 minutes

Key points:

  • Top Agent Network's case was dismissed in 2021, but in light of a recent ruling in a similar case, the group is appealing the decision.
  • The DOJ filed a motion asking for more time to submit an amicus brief in the TAN suit.
  • NAR and the San Francisco Association of Realtors are named as defendants.

The Department of Justice has until March 13 to weigh in on a second antitrust suit against the National Association of Realtors after the U.S. Supreme Court ruled a similar case brought by former private pocket listings company PLS can proceed.

The DOJ last month filed a motion in the Ninth Circuit Court of Appeals asking for more time to file an amicus brief over antitrust claims against NAR filed by the Top Agent Network. The San Francisco Association of Realtors is also named as a defendant.

The DOJ asked for a two-week extension to file its brief by Feb. 10, instead of the original deadline of Jan. 27, indicating that it intends to file a brief in support of the plaintiff or as a neutral party.

That request was granted, according to a schedule published by the Ninth Circuit Court of Appeals, which stated that "the government may file an amicus brief on or before March 13." 

The court also wrote that NAR and the San Francisco Association of Realtors, as defendants in the case, may file briefs by April 20. 

The three-year-old lawsuit brought by the Top Agent Network is another challenge against the trade association's Clear Cooperation policy. In its private pocket listings case, The PLS also alleged antitrust violations against NAR. The case was remanded after the Supreme Court refused to hear it. The DOJ also had filed an amicus brief in that lawsuit.

Top Agent Network is appealing its case in California, which was dismissed with prejudice by a district court in August 2021, claiming that the Clear Cooperation policy restricts consumer choice. The NAR policy, adopted in January 2020, requires that within one business day after a property is publicly marketed, it must be published on the MLS.

"We cannot speculate regarding DOJ's actions, however, we believe that the district court properly dismissed this case back in August 2021," said the National Association of Realtors in a statement.

"The Clear Cooperation Policy (CCP) ensures brokers and agents serve the best interest of their consumers and promote equal opportunity for all. The CCP advances equal access and opportunity in housing by ensuring listings are widely available and accessible to all consumers and requires MLS participants to submit their listings within one business day of marketing the property to the public. Without the protections from the CCP, consumers would be disadvantaged because agents could refuse to give agents or customers access to those listings," said NAR.

The DOJ previously investigated NAR's Clear Cooperation policy, agreeing to settle the case in 2021. The agency later rescinded that decision, but a judge ruled last month that the DOJ could not reopen the investigation in light of the settlement agreement.

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