Pocket listings lawsuit now focused solely on NAR
In a fourth amended complaint, Top Agent Network has doubled down on its allegations that Clear Cooperation is anticompetitive and anti-consumer choice.
Scrutiny of the National Association of Realtors' Clear Cooperation Policy continues to grow, and the association is now facing renewed pressure from private listing provider Top Agent Network, which has been doggedly pursuing NAR since first filing suit against the association in 2020.
In July, a judge agreed to reconsider the case, and TAN filed a fourth amended complaint this week which focuses on the Clear Cooperation Policy and alleges that NAR has acted against the interest of "successful agents."
What TAN is claiming: The overarching themes of the lawsuit are around competition and consumer choice. TAN seeks to stop 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," lawyers for TAN wrote.
NAR is uniquely culpable, TAN argues, because the dominant MLS in most markets is "owned and controlled by an NAR affiliate."
TAN lawyers claim that the Clear Cooperation Policy "is anticompetitive and has no plausible pro-consumer benefits" and therefore "violates the Sherman Act and California state law."
While TAN concedes that "most sellers prefer to market through the MLS," there are numerous reasons why a seller would want to keep their home from public view, they say, including concerns over privacy, seeking to avoid repairs and costs of staging, or just simply testing the waters to get an impression on interest and price point for an individual property.
TAN lawyers also allege that NAR has a "strong incentive" to keep its membership numbers up — including less productive agents — while stifling competition from private listing services like TAN, which limits its membership to "to the top ten percent of agents responsible for most residential real estate transactions by sales volume."
What's different from previous complaints: The amended complaint seeks to dismiss the San Francisco Association of Realtors, which was named in the original lawsuit, leaving NAR as the sole defendant.
In exchange for dismissing SFAR, the filing states that NAR will not pursue challenges relating to the jurisdiction or venue.
NAR has 30 days to respond to the amended complaint.