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Supreme Court denies NAR petition in antitrust pocket listing lawsuit

The nation’s highest court dismissed the case without comment on Monday

The National Association of Realtors’ antitrust lawsuit over its pocket listing policy will have to continue on its current path. The U.S. Supreme Court turned away NAR’s petition to hear the case on Monday without comment.

The trade group filed its “writ of certiorari” in late September 2022, along with BrightMLSCalifornia Regional MLS (CRMLS) and Midwest Real Estate Data (MRED). In its petition, NAR asked the Supreme Court to review an April 2022 ruling by the Ninth U.S. Circuit Court of Appeals.

The April ruling overturned a lower court’s decision to throw out a case filed by The PLS.

The PLS is now known as The NLS (but still referred to as “The PLS” in legal filings).

In the initial lawsuit, The PLS alleged that NAR and the other defendants had violated the Sherman Antitrust Act and California’s Cartwright Act by adopting a policy known as the Clear Cooperation Policy. This policy requires listing brokers to submit a listing to their MLS within one business day of marketing a property to the public.

In addition to attracting attention from The PLS, this policy piqued the interest of the U.S. Department of Justice, which is currently investigating NAR over the CCP and other rules.

“It would be hard to fathom a more obviously anticompetitive agreement than the Clear Cooperation Policy,” The PLS’ opposition brief stated. “PLS introduced competition in the market for real estate listing services by giving both sellers’ agents and buyers’ agents a choice.”

In its initial filing with the Supreme Court, NAR wrote that the Ninth Circuit court’s decision to overturn the dismissal of The PLS’s case was “contrary and erroneous.”

In addition, the trade organization wrote that the decision was not in line with prior case law, “sowing confusion and inviting future courts to ignore or misapply fundamental principles of antitrust law.”

“We are disappointed the Supreme Court has decided not to hear our appeal of the decision not to dismiss the case. Regardless, we look forward to presenting our position at trial and remain confident we will ultimately prevail,” Mantill Williams, NAR’s VP of communications, said in a statement. “As a leading advocate for homeownership, NAR determined the Clear Cooperation Policy (CCP) was needed as a crucial protection for consumers. It ensures that publicly marketed property listings are widely available and accessible to all consumers. As was noted by the federal Judge who initially dismissed this case, the CCP provides consumers with “access to more information regarding market conditions, enabling them to make better informed choices about the bundle of real estate brokerage services that will best serve their needs.” 

Due to the Supreme Court’s ruling, the case will not proceed through the U.S. District Court in the Central District of California.