Top Agent Network (TAN) is not backing down in its antitrust lawsuit against the National Association of Realtors (NAR).
After being dismissed with prejudice in 2021 after a lower court ruled that TAN failed to state a claim with prejudice in its third amended complaint, the plaintiff appealed the ruling to the Ninth Circuit Court of Appeals. In August 2023, the appeals court chose to vacate the lower court’s ruling by ruling that the allegations made in TAN’s suit were nearly identical to those made in a suit filed by The PLS.com, which had been allowed to proceed.
The suit was reopened in December 2023 by U.S. District Court Judge Vince Chhabria, who is overseeing the suit in San Francisco. TAN filed its motion for reconsideration in May 2024, which Chhabria granted in late July by noting that the plaintiff had “adequately alleged antitrust injury.”
On Tuesday, TAN filed its fourth amended complaint in the suit. NAR is the only defendant in the newest version after the plaintiff filed a voluntary dismissal of the San Francisco Association of Realtors, which was originally named as one of the defendants. Chhabria approved the dismissal on Tuesday.
In the amended complaint, the plaintiff claims that the suit is seeking to “stop the National Association of Realtors (“NAR”) and its affiliates from conspiring to shut down competition, disrupt the relationship between real estate agents and their clients, and take away a family’s freedom to choose how to market their home for sale.”
The suit argues that consumers should have a choice in whether or not they market their home on their local MLS. This choice is allegedly removed due to NAR’s Clear Cooperation Policy, which requires agents to list the property on the MLS within 24 hours of marketing it.
“While most home sellers prefer to market through the MLS — which generally puts a listing before the most eyeballs the fastest — at any given time a significant percentage of consumers prefer not to do so,” the amended complaint states.
“Many consumers wish to preserve their privacy and do not want to host viewings or have their property widely available for viewing on a listing website. Other consumers engage in limited off-MLS marketing to ‘test the waters’ to determine the appropriate price for their home listing on the local MLS — MLSs retain listing data and overpricing a home on the MLS and failing to achieve a quick sale can lead to a lasting drop in the property’s value.”
In addition to limiting sellers’ marketing options, TAN also claims that the policy “is intended to reduce competition in the market for broker services by preventing agents from using marketing strategies outside the standard MLS listing. This reduction is accomplished by coercing agents and their selling clients away from the use of services like TAN’s or engaging in other off-MLS marketing.”
The complaint also notes that while NAR claims the Clear Cooperation Policy is pro-consumer as it “ensures homes are placed on the MLS where they will be exposed to more counterparties,” it contains a carve-out for “office exclusives,” which TAN calls “pocket listings held exclusively within a single brokerage.”
“The reality is that NAR knows that off-MLS marketing and sales is an inherent part of the market that will never disappear, and that many sellers seeking to avoid the MLS will simply not sell their homes rather than be forced into an on-MLS sale,” the complaint states. “The ‘broker exclusive’ carveout allows these sales to continue as pocket listings, with buyer and seller represented by the same brokerage.”
The complaint goes on to claim that this prevents agents who are not part of a large brokerages from effectively serving customers who wish to market their property off the MLS. These agents may “lack a sufficient number of colleagues to whom they can market the property.”
Additionally, TAN alleges that the Clear Cooperation Policy has contributed to the nation’s record-low inventory situation. It claims that there is always a “large number” of homeowners who don’t have an intention to sell their home but will do so “given the right combination of sale price and convenience.”
“Off-MLS marketing provides for alternative strategies, such as leaving a home on the market for extended periods of time, to see if a willing buyer at the right price happens to come along,” the complaint states. “In this manner, off-MLS marketing can ‘loosen up’ inventory by allowing tentative home sellers to enter the market at their own pace.”
TAN is demanding a jury trial, treble damages, restitution, an order directing the termination of the Clear Cooperation Policy and a permanent injunction barring enforcement of the policy. A trial is slated for November 2025.
