A Wisconsin federal court has considered whether a multiple listing service participant could bring a class action lawsuit against a REALTOR® association and its multiple listing service over the practice of requiring association membership for multiple listing service participation.
Jay Reifert ("Member") is a member of the REALTORS® Association of South Central Wisconsin, Inc. ("Association"). The Member works exclusively as a buyer's representative and is a member of the National Association of Exclusive Buyers Agents ("NAEBA"). The Association owns 100% of the stock for the South Central Wisconsin Multiple Listing Service Corporation ("MLS"). Only members of the Association can participate in the MLS.
The Member claimed that he tried to purchase MLS services without joining the Association, but the MLS denied his request. Therefore, he purchased the allegedly unwanted Association services in order to receive MLS access. After four years of paying the allegedly unwanted membership dues, the Member brought an antitrust lawsuit against the MLS, Association, and the Association's directors for illegally tying Association membership to MLS services. The Member then brought a motion before the trial court seeking to certify his lawsuit as a class action on behalf of other members of the Association.
The United States District Court for the Western District of Wisconsin denied the Member's motion for class certification. There are four requirements for determining whether class certification is appropriate: numerosity, commonality, typicality, and adequate representation. The essence of these requirements is determining whether a class exists and can be defined by the court.
The Member initially argued that all 5600 individuals who participated in the MLS during his time of membership was the appropriate class. The court found that this class was much too broad, and even the Member conceded that number was too broad, as he himself estimated that only 30% of the MLS participants would not have joined the Association without the MLS services.
The court found that even the more limited class of 30% was unmanageable, as the Member had offered no evidence to support his calculations. The court found that the Member was unable to identify a manageable class, as his proposed class required a determination of each class members' state of mind at the time they joined the Association. Further, the Member was unable to satisfy the numerosity requirement for bringing a class action, as the Member had offered no evidence that there were any members of the Association besides himself who had joined the Association solely to obtain MLS services. Thus, the court ruled that the Member had failed to identify a suitable class and so his motion for class certification was denied.
Reifert v. South Central Wis. MLS Corp., No. 04-C-969-S, 2005 WL 1206843 (W.D.Wis. May 20, 2005). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].