Top Agent Network, Inc. v. Nar

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2023
• Docket: 21-16494
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TOP AGENT NETWORK, INC., No. 21-16494

Plaintiff-Appellant, D.C. No. 3:20-cv-03198-VC

v. MEMORANDUM* NATIONAL ASSOCIATION OF REALTORS; SAN FRANCISCO ASSOCIATION OF REALTORS,

Defendants-Appellees,

and

CALIFORNIA ASSOCIATION OF REALTORS, INC.,

Defendant.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted August 24, 2023** San Francisco, California

Before: BUMATAY, KOH, and DESAI, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Top Agent Network (“Top Agent”) appeals the district court’s dismissal of its

third amended complaint for failure to state a claim with prejudice. We review de

novo. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

In 2019, the National Association of Realtors (“the Association”) adopted a

policy prohibiting member-realtors from marketing properties on private listing

services without also listing them on the Association’s public listing services. Top

Agent, the operator of a private listing service, sued the Association under the

Sherman Act, 15 U.S.C. § 1, and corollary state laws. Top Agent alleges that the

policy is a per se group boycott because it forces agents to either avoid non-MLS

listing services like Top Agent or agree to unfavorable terms. The district court

dismissed Top Agent’s third amended complaint for failure to state a claim without

leave to amend. Top Agent Network v. Nat’l Ass’n of Realtors, 554 F.Supp.3d 1024

(N.D. Cal 2021).

After dismissal but before briefing in this case, we considered the sufficiency

of similar allegations in PLS.com v. Nat’l Ass’n of Realtors, 32 F.4th 824, 832–41

(9th Cir. 2022), cert. denied, 143 S. Ct. 567 (2023). Because the facts of PLS.com

are sufficiently analogous to the facts as alleged here, we vacate the district court’s

order and remand Top Agent’s claims for reconsideration under PLS.com.

VACATED and REMANDED.