Pocket listings lawsuit gets (another) new lease on life
A U.S. District Court judge has approved a motion from the plaintiffs requesting reconsideration of a case originally filed against NAR in 2020.
In a year marked by litigation, NAR just can't seem to get a break. This week, the judge in the Top Agent Network (TAN) pocket listings lawsuit, which names NAR and the San Francisco Association of Realtors, has agreed to reconsider key points in a case that has been dismissed — and reopened — three times.
In an order filed July 22 in U.S. District Court's Northern District of California, Judge Vince Chhabria approved the plaintiffs' motion for reconsideration and scheduled a case management conference for Aug. 30. TAN is seeking an October 2025 trial date.
What is this case about? The private listing service Top Agent Network sued the National Association of Realtors and the San Francisco Association of Realtors in 2020, challenging the Clear Cooperation policy which requires an agent or broker to add their listing to the multiple listing service within one day of marketing it to the public.
This rule effectively locks out private listing services, according to TAN CEO David Faudman. The lawsuit alleges that NAR conspired with SFAR to force agents to list their properties on the MLS, which would increase the fees that NAR collects.
Why is the judge taking another look? The lawsuit has been revived multiple times since it was first filed four years ago. Most recently, in December 2023, Judge Chhabria agreed to reopen the case. And then in April, the parties appeared to be working toward a settlement, but that process stalled.
Chhabria said two points from a different case — PLS.com vs. the National Association of Realtors — compelled him to reconsider the TAN suit.
First, he said the relevant market in the case is not the consumer real estate marketplace, but real estate listing services.
"That's the market in which the National Association of Realtors and its affiliate associations and MLSs compete with other listing service providers like Top Agent Network," Chhabria said in the order.
The second point, he noted, is whether pro-competitive benefits of the Clear Cooperation policy outweigh alleged anticompetitive effects. Chhabria concluded that the complaint from TAN "adequately alleged" that the policy violates the Sherman Antitrust Act and that the company "has been injured by that injury to competition."