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PLS.COM, LLC v. Nat’l Ass’n of Realtors

PLS.COM, LLC v. Nat’l Ass’n of Realtors

United States Court of Appeals for the Ninth Circuit

January 14, 2022, Argued and Submitted, Pasadena, California; April 26, 2022, Filed

No. 21-55164

Opinion

M. SMITH, Circuit Judge:

The PLS.com, a new entrant in the real estate network services market after [*6]  decades of there being little or no competition in that market, alleges that its entrenched competitors violated the antitrust laws because they conspired to take anticompetitive measures to prevent it from gaining a foothold in the market. The district court dismissed PLS's complaint without leave to amend because it concluded PLS did not, and could not, adequately allege antitrust injury. We reverse.

FACTUAL BACKGROUND

Most people seeking to buy or sell a home hire a real estate agent to assist them with the process.3 Agents assist sellers by marketing their homes, and they assist buyers by finding homes that match their preferences. To do so, most agents pay monthly fees to access multiple listing services (MLSs), which are databases of homes for sale in certain geographic areas. For example, the California Regional Multiple Listing Service (CRMLS) lists homes for sale in parts of California; the Bright MLS lists homes for sale in parts of New Jersey, Delaware, Maryland, Pennsylvania, West Virginia, Virginia, and Washington, D.C.; and Midwest Real Estate Data, LLC (MRED) lists homes for sale in parts of Illinois, Wisconsin, and Indiana.

Most MLSs are owned and controlled by members [*7]  of the National Association of Realtors (NAR), a trade association to which the "vast majority" of residential real estate agents belong. There are approximately 600 NAR-affiliated MLSs in the United States, and CRMLS, Bright, and MRED each contain "over 65 percent of residential real estate listings marketed by licensed real estate professionals in their respective service areas." Residential real estate agents "regard participation in their local MLS as critical to their ability to compete."

Most sellers prefer to list their homes on NAR-affiliated MLSs to reach the widest possible range of buyers, but some sellers prefer not to do so because they do not wish to share all of the information NAR-affiliated MLSs require. For instance, a public figure may not wish to share certain details about his or her home with an entire MLS. Listings that are not shared on a NAR-affiliated MLS are sometimes called "pocket listings."

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2022 U.S. App. LEXIS 11203 *; __ F.4th __; 2022 WL 1218792

THE PLS.COM, LLC, a California limited liability company, Plaintiff-Appellant, v. THE NATIONAL ASSOCIATION OF REALTORS; BRIGHT MLS, INC.; MIDWEST REAL ESTATE DATA, LLC; CALIFORNIA REGIONAL MULTIPLE LISTING SERVICE, INC., Defendants-Appellees.

Prior History:  [*1] Appeal from the United States District Court for the Central District of California. D.C. No. 2:20-cv-04790-JWH-RAO. John W. Holcomb, District Judge, Presiding.

Disposition: REVERSED and REMANDED.

CORE TERMS

listings, Cooperation, competitors, antitrust, consumers, network, sellers, group boycott, anticompetitive, prices, alleges, district court, buyers', rule of reason, harms, customers, platforms, two-sided, merchants, anti trust law, procompetitive, effects, cards, relevant market, credit-card, indirect, pocket, market power, real estate, concerted

Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Antitrust & Trade Law, Actual Monopolization, Anticompetitive & Predatory Practices, Predatory Pricing, Sherman Act, Claims, Private Actions, Standing, Requirements, Regulated Practices, Sherman Act, Remedies, Damages, Monopolies & Monopolization, Conspiracy to Monopolize, Elements, Price Fixing & Restraints of Trade, Per Se Rule & Rule of Reason, Per Se Violations, Tying Arrangements, Sherman Act Violations, Per Se Rule Tests, Manifestly Anticompetitive Effects, Evidence, Burdens of Proof, Allocation, Burden Shifting, Attempts to Monopolize, Monopoly Power, Horizontal Refusals to Deal, Boycotts, Cartels & Horizontal Restraints, Price Fixing, Robinson-Patman Act, Notice of Appeal, Appellate Briefs, Inferences & Presumptions, Inferences