Counterclaim Against NAR Dismissed

Read the full decisionMetro. Reg’l Info. Sys. v. Am. Home Realty Network, 12-CV-00954-DKC

Maryland federal court has considered the National Association of REALTORS®’s (“NAR”) motion for judgment in a counterclaim alleging antitrust violations.

Metropolitan Regional Information System, Inc. (“MRIS”) operates a multiple listing service in the mid-Atlantic region.  In 2012, MRIS brought a copyright infringement lawsuit against the American Home Realty Network, Inc. (“Website Operator”), which operates a website known as “NeighborCity.com” (“Website”) that purports to offer a national real estate search and provides rankings of real estate professionals. The trial court entered a preliminary injunction barring the Website Operator from using MRIS’s copyrighted information - click here to read the earlier summary. The injunction was upheld on appeal - click here to read.

Following the issuing of the preliminary injunction, the Website Operator answered MRIS’s complaint and filed a counterclaim against MRIS, adding NAR to the counterclaim.  The counterclaim contained a wide array of state and federal claims, including antitrust allegations. The trial court initially dismissed the entire counterclaim, but allowed the Website Operator to file an amended counterclaim. The counter against MRIS was dismissed - click here to read. NAR filed a motion seeking judgment in its favor.

The United States District Court for the District of Maryland, Southern Division, entered judgment in favor of NAR. NAR argued that the Website Operator had failed to demonstrate the alleged antitrust conspiracy and that NAR had Noer-Pennington antitrust immunity when it assisted MLSs in protecting their copyrights through litigation.  Noer-Pennington is a doctrine that allows parties to work together free of antitrust scrutiny to create laws, regulation, or collaborate on litigation, even if this would create a restraint or monopoly, so long as the parties are acting in good faith and not taking the actions merely to interfere with the business of another. The Website Operator argued that NAR was not protected by Noer-Pennington because it was not a party to the underlying litigation. The court determined that Noer-Pennington immunity does not require a party to be a litigant, finding there was nothing unlawful about NAR assisting MLSs who were considering what actions to take against the Website Operator for the alleged unlawful misappropriation of listing information. Thus, the court rejected this argument.

Next, the court considered the evidence for a conspiracy produced by the Website Operator. The direct evidence was a call between a Website Operator employee and a real estate professional, while the circumstantial evidence included calls from a call center and other allegations. The court found the alleged evidence ambiguous at best and nothing established that NAR had any role in creating an illegal conspiracy. Instead, much of the evidence demonstrated that MLSs and other real estate professionals did not want to work with the Website Operator for a multitude of reasons, ranging from its dropping MLS participation but continuing to display listing information to many real estate professionals finding the terms of the referral agreements unfavorable. Finding that there was no evidence to support the Website Operator’s antitrust allegations, the court entered judgment in favor of NAR.

Metro. Reg’l Info. Sys. v. Am. Home Realty Network, 12-CV-00954-DKC (D. Md. July 6, 2015). [Note: This opinion is not published in an official reporter and therefore should not be cited as authority. Please consult counsel before relying on this opinion.]

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