Top Agent Network challenged NAR in federal court and requested an injunction to block the pocket listing changes. But the court said “antitrust law does not give them the right to benefit from the contributions of fellow NAR members while withholding listings of their own.”

SAN FRANCISCO – Top Agent Network challenged the National Association of Realtors®’ (NAR) Clear Cooperation Policy in the U.S. Court for the Northern District of California. The company claimed that NAR’s policy was an antitrust violation, and it asked the court to issue an injunction to stop Clear Cooperation Policy while litigation continued.

The court denied the injunction, however, and said Top Agent Network was “unlikely to succeed in arguing that the National Association of Realtors policy amounts to a group boycott or that it otherwise has significant anticompetitive effects. … Because Top Agent Network operates separate databases of properties that are available only to select buyers and sellers, its members are understandably resistant to the policy. But that does not mean that NAR has ‘boycotted’ these agents.”

The decision goes on to say that “Antitrust law does not give them a right to benefit from the contributions of fellow NAR members while withholding listings of their own.”

Top Agent Network also alleged “tortious interference with contract.” The court says this claim “will require Top Agent Network to establish that NAR undertook ‘intentional acts designed to induce a breach or disruption of the contractual relationship’ between Top Agent Network and its members.”

The court also decided that this claim didn’t have enough merit to issue an injunction, saying, “Top Agent Network may have good reasons for preferring to conduct business through more selective networks, but the policy does not prevent them from doing so.”

The court also noted the timing of the complaint in its decision. It said that Top Agent Network waited six months before suing, which undermines “its contention that a preliminary injunction is warranted.”

The court’s decision may not be the final word, but it allows NAR’s Clear Cooperation Policy to continue for now.

Clear Cooperation Policy resources

• 8.0 Clear Cooperation Policy Revisions to Florida Realtors’ Listing Agreements (April 30, 2020)

• Dear Anne: Clear Cooperation? Nothing ‘Clear’ About It (May 4, 2020)

• Forms update: 5 Listing Agreements Changed (May 4, 2020)

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