Top Agent Network, Inc. v. National Association of Realtors; San Francisco Association of Realtors

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOP AGENT NETWORK, INC.,
Plaintiff-Appellant,
v.
NATIONAL ASSOCIATION OF
REALTORS; SAN FRANCISCO
ASSOCIATION OF REALTORS,
Defendants-Appellees,
and
CALIFORNIA ASSOCIATION OF
REALTORS, INC.,
Defendant.
No. 21-16494
D.C. No. 3:20-cv-03198-VC
MEMORANDUM*
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).
FILED
AUG 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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