To all the agents in the house,
During the halcyon days of 2015 and 2016 when one could do so many activities IRL, I was a cub legal reporter who waltzed into 9th Circuit Court of Appeals oral arguments with the mere requirement of walking through a metal detector. These sunlit memories came back Friday when I realized that the picturesque Pasadena courthouse was closed for public viewing. So, though I was back in Los Angeles, I had to watch oral arguments streaming, with judges and lawyers each allotted their Zoom square.
What I watched had implications for the National Association of Realtors' pocket listings ban, and the serious nature of cases against NAR.
This particular case concerned the lawsuit PLS.com – which stands for Pocket Listings Service – filed against NAR, contending that their mandate that NAR agents post listings on the Multiple Listings Service runs afoul of antitrust law. A Los Angeles judge swiftly dismissed the case. But PLS.com appealed, the Justice Department filed an amicus brief supporting the appeal, and appeals court judges seemed open to PLS.com's arguments.
Longtime 9th Circuit Judge Milan Smith, for example, chided NAR's outside counsel, Ethan Glass for parsing PLS.com's complaint while Smith was, "Looking at reality."
"These folks are looking to put them out of business," Smith said - "These folks" referring to NAR, and "them" to PLS. "And it's very successful. You put them out of business."
Smith also appeared sympathetic to PLS.com's arguments that they need not prove consumers are harmed by the pocket listings ban. Instead, the impact on PLS.com itself and agents also counts. The judge drew a parallel to antitrust lawsuits collegiate athletes have filed against the National Collegiate Athletic Association. In those cases, the U.S. Supreme Court found that the burden is to show the athletes were harmed, and not ultimately prove that viewers watching the sports were also hurt.
Smith is just one judge and the other justices of the three-member panel were largely silent. We won't know for a few weeks how they ruled.
But the oral arguments was proof that this particular legal action is not a fringe attack against NAR but something powerful people are taking seriously.
"It's been an increasingly loud drumbeat against some of these ways of doing business at NAR," Laura Alexander, vice president of policy at the American Antitrust Institute told me in today's upcoming episode of HousingWire Daily.
Challenges to NAR "take time and litigation is slow," Alexander added, but, "More and more potential competitors to NAR and affiliated MLSs have been emerging."
Agents, what are your thoughts? Are you following the slow burn drama of these antitrust cases? And what would you like to see happen?
Please email me at mblake@housingwire.com.
Sincerely,
Matthew Blake
Senior Real Estate Reporter
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