Homie takes ‘conspiracy’ argument to appeals court
In making its case against NAR, Anywhere, REMAX and HSoA, the flat-fee brokerage claimed Realtors conspired to boycott the firm due to its low commission rates.
A panel of appellate judges peppered attorneys with questions about a key real estate case this week in Denver. The court will be deciding whether the actions of real estate agents constituted a conspiracy that involved major brokerages and the National Association of Realtors.
The case brought by discount brokerage Homie Technology to the Tenth Circuit Court of Appeals involves allegations that the defendants — NAR, Anywhere Real Estate, REMAX and HomeServices of America — conspired against the flat-fee brokerage through a boycott scheme.
Homie provided texts and emails from NAR member agents telling the company they would not show Homie listings to their clients because the commissions were too low.
Originally filed in August 2024, the case was dismissed by the U.S. District Court in Utah a year later but appealed to the Tenth Circuit, where oral arguments were made earlier this week.
Was there a Sherman Act violation? The arguments presented to the judges centered around whether the actions of the "boycotting" agents could be tied to the defendants.
Presenting for the defendants, attorneys Christopher Michel and Aaron Daniel Van Oort argued that agreeing to rules that can be misused is not a conspiracy, and there was no evidence that NAR and the brokerages orchestrated the boycott.
"The fundamental problem with Homies' claim is that it is not plausibly alleged that the defendants it sued agreed to engage in that conduct," Michel told the panel.
'Card-carrying members of a conspiracy': Homie attorney Christopher Renner countered that the rules themselves represented a conspiracy, and "the appellees used their control of the nation's multiple listing services to promulgate rules that facilitated exclusionary conduct called steering at the expense of brokerages offering low prices to consumers."
Renner cited Supreme Court cases showing precedent, and asserted that since 1946, "the members of the conspiracy include all members of the association."
"They're card-carrying members of the conspiracy affected by the rules, making this case a continuing violation of the Sherman Act," Renner said, referring to the agents involved in the boycott.
Skepticism from the court: The judges appeared to push back on Renner's argument.
"Hypothetically, if a group has a rule that proposes completely innocent conduct, and members use that conduct to boycott a competitor, then the group that promulgate the rule is guilty. Isn't that what you're saying?" asked one judge, who was not identified in the audio recording of the arguments.
Renner said that wasn't the case — rather, it was the cumulative effect of the rules that created a market structure for this boycott conduct.
"In this case, we've alleged going through each rule, specific factual allegations that explain how that specific rule increased the likelihood and profitability of steering," Renner said.
Michel, however, argued that the damage Homie alleges is implausible, because the rules "were in place for years while Homie was thriving as a brokerage."
The judges — Timothy Tymkovich, Michael Murphy and Joel Carson — are expected to make a ruling on the case in the coming months.