The PLS.com LLC v. National Association of Realtors et al.

Case Name: The PLS.com LLC v. National Association of Realtors et al.

Type of Case: Antitrust

Court: 9th Circuit

Judge(s): Judge Milan D. Smith, Jr.

Appellant Lawyers: Jenner & Block LLP, Christopher G. Renner, Douglas E. Litvack, Michael T. Brody; Davis Wright Tremaine LLP, Adam S. Sieff, Everett W. Jack Jr., David M. Gossett, John F. McGrory Jr., Ashlee M. Aguiar

Appellee/Respondent Lawyers: Cooley LLP, Ethan C. Glass, Quinn Emanuel Urquhart & Sullivan LLP, William A. Burck, Derek L. Shaffer, Michael D. Bonnano, Peter Benson, Kathleen Lanigan; Stream Kim Hicks Wrage & Alfaro PC, Robert J. Hicks, Theodore K. Stream, Andrea Rodriguez; Arent Fox Schiff LLP, Jerrold E. Abeles

Attorneys for The PLS.com secured a 9th Circuit reversal of a district court ruling in an antitrust case against the National Association of Realtors. The PLS.com LLC v. National Association of Realtors et al., 21-55164 (9th Cir.).

Douglas E. Litvack

PLS, which now operates under TheNLS.com LLC, sought to provide a nationwide electronic platform for "pocket" listings. Pocket listings are off-market or exclusive listings that are usually used by buyers and sellers who wish to maintain privacy. PLS alleged that faced with the threat of competition from its pocket listing network, the National Association of Realtors (NAR) enacted a Clear Cooperation Policy (CCP) that effectively excluded PLS from the market and violated antitrust laws. The CCP required Realtors to add non-MLS listings to the regional MLS within one business day or face heavy fines and possible termination of their access to the MLS.

A district court dismissed the complaint for lack of antitrust standing because it did not allege harm to homebuyers and sellers. Attorneys for PLS, led by Jenner & Block's Christopher Renner and Douglas Litvack, convinced the 9th Circuit to fully revive the case.

"One important issue in the appeal was the identification of the relevant 'consumer' for antitrust purposes," wrote Litvack in an email. "We contended that one of the relevant consumers for the purposes of the antitrust analysis of PLS's Amended Complaint was the real estate agents who purchase listing network services -- services that the MLS and PLS competed to provide to agents -- and who were harmed by the elimination of that competition."

The lower court had dismissed the case largely because PLS failed to allege injury to homebuyers and sellers. However, the 9th Circuit agreed with Renner and Litvack that the lower court should have considered the direct consumers of the listing services and real estate agents, who were allegedly left with fewer choices and supra-competitive prices as a result of the CCP. The Court ruled that PLS did adequately allege an anti-competitive effect in violation of the Sherman Act.

The decision could potentially have far-reaching effects in an industry long dominated by a few select players.

"The PLS created a once-in-a-lifetime opportunity for real competition in a monopolized market by facilitating the entry of a competing network, which could compete at scale with the decades-old MLS systems. Competition is good for consumers and good for the economy. Ultimately, the market will decide the implications of our case," Renner wrote in an email.

In January, the U.S. Supreme Court declined to hear the case. It was remanded to the district court and discovery is ongoing.

Opposing counsel could not be reached for comment.

-- Jennifer Chung Klam