Top Agent Network, Inc. v. National Association of Realtors

Background

Top Agent Network moved for a preliminary injunction against enforcement of a National Association of Realtors policy. According to the court, brokers who join a NAR-affiliated listing service must post within one day properties they marketed elsewhere onto the NAR database. Top Agent Network operates separate property databases available only to select buyers and sellers, and its members resisted the policy.

Top Agent Network argued that the policy amounted to a group boycott or otherwise had significant anticompetitive effects. It also asserted state-law claims for tortious interference with contract. In a footnote, the court addressed Top Agent Network’s separate claim that NAR unlawfully maintained monopoly power under section 2 of the Sherman Act.

Court’s analysis

The court concluded that Top Agent Network was unlikely to succeed on its antitrust claims. Members of Top Agent Network were free to join NAR listing services and receive their benefits, and they were free to leave if they disagreed with the policies. The court stated that antitrust law did not give them a right to benefit from NAR members’ contributions while withholding their own listings.

The court also found Top Agent Network’s theories of consumer harm doubtful. It considered the policy more likely to benefit buyers and sellers by increasing access to housing-market information, improving market efficiency, and stimulating competition.

The court likewise found Top Agent Network unlikely to succeed on its tortious-interference claims. It said those claims required proof that NAR intentionally acted to induce a breach or disruption of the contractual relationship between Top Agent Network and its members. The court found that NAR had acted to prevent exploitation of its own service, not to disrupt those contracts. It also said NAR had a strong defense that its interest in preventing exploitation outweighed Top Agent Network’s interest in preserving that business method.

Regarding the section 2 monopolization claim, the court stated that Top Agent Network had offered almost no legal or factual analysis supporting its assertions that NAR possessed monopoly power and was willfully maintaining it. The court therefore found that Top Agent Network had not shown even serious questions about the merits of that claim.

The court further held that Top Agent Network’s six-month delay undermined its claim of irreparable harm and weakened its argument that the balance of equities favored an injunction. Top Agent Network complained to NAR when the policy was adopted in November 2019, and NAR announced that the policy would take effect in January 2020. Top Agent Network filed suit in May 2020.

Disposition

Judge Vince Chhabria denied Top Agent Network’s motion for a preliminary injunction. The court also concluded that an injunction would not serve the public interest.