The National Association of Realtors (NAR) and several other defendants are making another attempt at having the Hardy antitrust lawsuit dismissed.
The defendants — which also include the Michigan Association of Realtors, The Grosse Pointe Board of Realtors, Greater Metropolitan Association of Realtors, North Oakland County Board of Realtors and Realcomp II Ltd. — on Wednesday filed a joint motion to dismiss the first amended complaint filed by real estate professionals Douglas Hardy, Glenn Champion and Dylan Tent.
According to the motion, the defendants believe that the plaintiffs have not stated a federal or state-level claim for an antitrust violation, nor have they stated a claim for a civil conspiracy.
Originally filed in August, the lawsuit claims that the requirement that all agents and brokers in Michigan be members of NAR, their state Realtor association and a local board of Realtors in order to list a property on Realcomp (the local MLS) represents an antitrust violation.
In their motion, the defendants noted that the plaintiffs’ claims about the three-way membership agreement were correct, but they took issue with the allegation that this is an antitrust violation.
“Plaintiffs take issue with being Realtors, including as members of Realcomp’s alleged shareholder associations,” the motion states. “Specifically, Plaintiffs challenge the requirement of association membership to access Realcomp’s MLS — but would like to retain the full benefits that Realcomp’s MLS provides to those members.”
The defendants go on to say that the plaintiffs have failed to show how their alleged anticompetitive conduct has impacted competition in the market.
“Plaintiffs have now made explicit that they intend to bring a tying claim, but the first amended complaint does no more to make out such a claim than did the original complaint,” the filing states. “Tellingly, the first amended complaint still does not allege that Defendants’ conduct has harmed competition.”
In addition to these claims, the defendants also take issue with the plaintiffs’ “attack” on the NAR commission lawsuit settlement agreement.
In their first amended complaint filed in November 2024, the plaintiffs claimed that now that offers of buyer broker compensation are no longer allowed on the MLS due to the terms of NAR’s commission lawsuit settlement agreement, the “compulsory membership” of the Realtor associations “have rendered membership in these organizations of no benefit.”
In their motion, the defendants pointed out that by making these claims, the plaintiffs have said that the MLS is essential but that it also no longer has a purpose. Additionally, they claim that the plaintiffs are showing a preference for practices a Missouri jury found to be anticompetitive in the Sitzer/Burnett trial.
“The first amended complaint fails for the same reasons as the initial Complaint — Plaintiffs have not identified facts sufficient to support either their antitrust or their conspiracy claims. The first amended complaint should be dismissed,” the defendants’ motion states.
The plaintiffs filed the first amended complaint in response to the defendants’ first motion to dismiss, which was filed in November. The court never ruled on the defendants’ previous motion to dismiss.
