NAR deal and DOJ ruling give pocket listing case new life 

The lawsuit with seemingly more lives than an alleycat, Top Agent Network's pocket listing suit against NAR and the San Francisco Association of Realtors (SFAR), appears to once again be moving forward.

NAR's settlement of the Sitzer/Burnett buyer compensation class action and a recent ruling allowing the Department of Justice to reopen its investigation of NAR's Clear Cooperation policy could impact the case, according to court filings made by TAN this week. TAN is also seeking an October 2025 trial date.

How did we get here? The suit, originally filed in 2020, has been dismissed and reopened three times. After the most recent dismissal, the 9th Circuit Court of Appeals ordered that the trial court reopen the case. That happened in December.

TAN and NAR appeared headed for settlement in January, asking Judge Vince Chhabria of the U.S. District Court for the Northern District of California to delay proceedings for three months to potentially "save litigation costs" and keep the proceedings from taking space on the Court's calendar.

In a January 26 Zoom conference, the court noted that the parties discussed "potential resolution" of the case. But that was before NAR's settlement of the buyer compensation class action and the ruling allowing the DOJ to reopen its investigation. Now the three months are up and the parties have filed a "Joint Case Management Statement," with TAN asking for a fall 2025 trial.

What is at issue in this case: Private listing service Top Agent Network sued NAR and SFAR in May 2020, challenging the organization's Clear Cooperation policy, which requires an agent or broker to submit their listing to the MLS within one day of marketing the property to the public.

TAN CEO David Faudman has previously argued that NAR's Clear Cooperation policy essentially locks private listing services out of  local markets. In August 2021, he described the policy to Reuters as "just another anticompetitive attempt by the NAR to use its monopoly power to crush market alternatives."

NAR's perspective: A spokesperson for NAR told Real Estate News last September that the Clear Cooperation policy "ensures brokers and agents serve the best interest of their consumers and promote equal opportunity for all."

Real Estate News has reached out to NAR for comment on the most recent court filings.