The pls.com, LLC v. Nar ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE PLS.COM, LLC, a California No. 21-55164
limited liability company,
Plaintiff-Appellant, D.C. No.
2:20-cv-04790-
v. JWH-RAO
THE NATIONAL ASSOCIATION OF
REALTORS; BRIGHT MLS, INC.; OPINION
MIDWEST REAL ESTATE DATA, LLC;
CALIFORNIA REGIONAL MULTIPLE
LISTING SERVICE, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John W. Holcomb, District Judge, Presiding
Argued and Submitted January 14, 2022
Pasadena, California
Filed April 26, 2022
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and STEPHEN J. MURPHY, III, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Stephen Joseph Murphy, III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
2 PLS.COM V. NAT’L ASS’N OF REALTORS
SUMMARY **
Antitrust
The panel reversed the district court’s dismissal of an
action brought by The PLS.com, LLC, alleging that its
competitors in the real estate network services market
violated antitrust laws because they conspired to take
anticompetitive measures to prevent PLS from gaining a
foothold in the market, and remanded for further
proceedings.
PLS challenged the National Association of Realtors’
Clear Cooperation Policy, which required members of an
NAR-affiliated multiple listing service who chose to list
properties on the PLS real estate database also to list those
properties on an MLS. The district court dismissed on the
ground that PLS did not, and could not, adequately allege
antitrust injury under § 1 of the Sherman Act or California’s
Cartwright Act because it did not allege harm to home
buyers and sellers.
A competitor has standing to assert a Sherman Act claim
only when the claimed injury flows from acts harmful to
consumers. The panel held that the definition of the term
consumer is not limited to one who buys goods or services
for personal, family, or household use, with no intention of
resale. Rather, a business that uses a product as an input to
create another product or service is a consumer of that input
for antitrust purposes and can allege antitrust injury.
Accordingly, PLS was not required to allege harm to home
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PLS.COM V. NAT’L ASS’N OF REALTORS 3
buyers and sellers to allege antitrust injury, and its allegation
that the Clear Cooperation Policy harmed buyers’ and
sellers’ real estate agents, the consumers of PLS’s and the
MLSs’ listing network services, could suffice.
To allege antitrust injury, PLS was required to allege
unlawful conduct, causing injury to PLS, that flowed from
that which made the conduct unlawful, and that was of the
type that the antitrust laws were intended to prevent.
Without a violation of the antitrust laws, there can be no
antitrust injury.
The panel held that PLS adequately alleged a violation
of Sherman Act § 1, which prohibits a contract, combination,
or conspiracy that unreasonably restrains trade. The panel
held that PLS adequately alleged that the Clear Cooperation
Policy was an unreasonable restraint of trade because it was
a per se group boycott, but the panel left to the district court
to determine in the first instance whether it should apply per
se or rule of reason analysis at later stages in the litigation.
The panel held that PLS satisfied Ohio v. Am. Express Co.,
138 S. Ct. 2274 (2018) (Amex), which requires a plaintiff to
define the relevant market to include both sides of the market
in certain circumstances. The panel held that Amex can apply
at the pleading stage, and that because PLS
satisfied Amex by alleging injury to both sellers’ agents and
buyers’ agents, the panel need not resolve the more difficult
questions the parties raised about how broadly Amex applies.
The panel concluded that PLS adequately alleged
antitrust injury by alleging a group boycott in which the
Clear Cooperation Policy prevented PLS from gaining a
foothold in the market and made it virtually impossible for
new competitors to enter the market, leaving agents with
fewer choices, supra-competitive prices, and lower quality
products.
4 PLS.COM V. NAT’L ASS’N OF REALTORS
The panel held that it had jurisdiction to consider
whether PLS adequately alleged that defendant Midwest
Real Estate Date, LLC (“MRED”) was involved in the
alleged conspiracy. At the time of PLS’s appeal, Federal
Rule of Appellate Procedure 3(c)(1)(B) required a party to
“designate” in its notice of appeal “the judgment, order, or
part thereof being appealed.” PLS’s notice of appeal
identified the object of its appeal as Subsection 1 of the
district court’s dismissal order, addressing antitrust injury,
but PLS’s opening brief also challenged Subsection 3 of the
order, addressing whether PLS adequately alleged that
MRED was part of the conspiracy. The panel held that it had
jurisdiction to review Subsection 3 because PLS’s intent to
appeal Subsection 3 could be fairly inferred from its opening
brief, and defendants were not prejudiced because they fully
briefed the issue. The panel further held that PLS adequately
alleged that MRED was involved in the conspiracy by
alleging a conscious commitment to a common scheme
designed to achieve an unlawful objective.
COUNSEL
Christopher G. Renner (argued), Jenner & Block LLP,
Chicago, Illinois; Douglas E. Litvack, Jenner & Block LLP,
Washington, D.C.; David M. Gossett, Davis Wright
Tremaine LLP, Washington, D.C.; Adam S. Sieff, Davis
Wright Tremaine LLP, Los Angeles, California; Everett W.
Jack Jr., John F. McGrory Jr., and Ashlee M. Aguiar, Davis
Wright Tremaine LLP, Portland, Oregon; for Plaintiff-
Appellant.
Jerrold Abeles (argued), Wendy Qiu, and Brian D.
Schneider, Arent Fox LLP, Los Angeles, California, for
PLS.COM V. NAT’L ASS’N OF REALTORS 5
Defendants-Appellees Bright MLS, Inc. and Midwest Real
Estate Data LLC.
Robert J. Hicks (argued), Theodore K. Stream, and Andrea
Rodriguez, Stream Kim Hicks Wrage and Alfaro PC,
Riverside, California, for Defendant-Appellee California
Regional Multiple Listing Service, Inc.
Ethan Glass (argued), William A. Burck, Derek L. Shaffer,
Michael D. Bonanno, Peter Benson, and Kathleen Lanigan,
Quinn Emanuel Urquhart & Sullivan LLP, Washington,
D.C., for Defendant-Appellee National Association of
Realtors.
Steven J. Mintz (argued), Daniel E. Haar, and Nickolai G.
Levin, Attorneys; Richard A. Powers, Acting Assistant
Attorney General; Antitrust Division, United States
Department of Justice, Washington, D.C., for Amicus
Curiae United States of America.
Laura M. Alexander, American Antitrust Institute,
Washington, D.C., for Amicus Curiae American Antitrust
Institute.
Christopher M. Wyant, K&L Gates LLP, Seattle,
Washington; Andrew Mann, K&L Gates LLP, Washington,
D.C.; for Amici Curiae Law Professors.
OPINION
M. SMITH, Circuit Judge:
The PLS.com, a new entrant in the real estate network
services market after decades of there being little or no
6 PLS.COM V. NAT’L ASS’N OF REALTORS
competition in that market, alleges that its entrenched
competitors violated the antitrust laws because they
conspired to take anticompetitive measures to prevent it
from gaining a foothold in the market. The district court
dismissed PLS’s complaint without leave to amend because
it concluded PLS did not, and could not, adequately allege
antitrust injury. We reverse.
FACTUAL BACKGROUND
Most people seeking to buy or sell a home hire a real
estate agent to assist them with the process. 1 Agents assist
sellers by marketing their homes, and they assist buyers by
finding homes that match their preferences. To do so, most
agents pay monthly fees to access multiple listing services
(MLSs), which are databases of homes for sale in certain
geographic areas. For example, the California Regional
Multiple Listing Service (CRMLS) lists homes for sale in
parts of California; the Bright MLS lists homes for sale in
parts of New Jersey, Delaware, Maryland, Pennsylvania,
West Virginia, Virginia, and Washington, D.C.; and
Midwest Real Estate Data, LLC (MRED) lists homes for sale
in parts of Illinois, Wisconsin, and Indiana.
Most MLSs are owned and controlled by members of the
National Association of Realtors (NAR), a trade association
to which the “vast majority” of residential real estate agents
1
This account is based entirely on the allegations in PLS’s
complaint, which we must accept as true at this stage of the litigation.
Ellis v. Salt River Project Agric. Improvement & Power Dist., 24 F.4th
1262, 1266 (9th Cir. 2022). The complaint distinguishes between real
estate “agents” and “brokers,” and uses the term “real estate
professional” to refer to both collectively. Because this distinction does
not affect our analysis, we use the term “agent” to refer to agents and
brokers collectively.
PLS.COM V. NAT’L ASS’N OF REALTORS 7
belong. There are approximately 600 NAR-affiliated MLSs
in the United States, and CRMLS, Bright, and MRED each
contain “over 65 percent of residential real estate listings
marketed by licensed real estate professionals in their
respective service areas.” Residential real estate agents
“regard participation in their local MLS as critical to their
ability to compete.”
Most sellers prefer to list their homes on NAR-affiliated
MLSs to reach the widest possible range of buyers, but some
sellers prefer not to do so because they do not wish to share
all of the information NAR-affiliated MLSs require. For
instance, a public figure may not wish to share certain details
about his or her home with an entire MLS. Listings that are
not shared on a NAR-affiliated MLS are sometimes called
“pocket listings.”
Historically, pocket listings were marketed through face-
to-face communications, telephone calls, or email. In 2017,
as “[d]emand for pocket listing[s] . . . skyrocketed,” a group
of real estate agents created PLS, which was a database
similar to an MLS, but that allowed sellers to choose how
much information to share, and that included listings
anywhere in the United States rather than just in a particular
region. PLS was open to any agent who wished to join, and
agents who joined were charged less than they were by the
MLSs. PLS grew rapidly, and by late 2019 had 20,000
members who “were cooperating to sell billions of dollars of
residential real estate listings nationwide.”
Even before PLS was formed, NAR and several MLSs,
including CRMLS, Bright MLS, and MRED, became
concerned with the growth of pocket listings. A 2015 NAR
study warned, “Off-MLS listings may contribute to the
unraveling of the MLS as we know it, and its replacement by
a private network that serves to benefit a certain group of
8 PLS.COM V. NAT’L ASS’N OF REALTORS
participants.” Another NAR study cautioned, “A number of
industry initiatives suggest that the current MLS-centric era
might be coming to an end. After half a century of operating
as the only gateway, there is a strong likelihood that the MLS
may lose its exclusive positioning as the principal source of
real estate listings.”
Two years after PLS launched, NAR’s “MLS
Technology and Emerging Issues Advisory Board” voted to
recommend that NAR adopt a policy that would require
agents posting listings on competing services to also post
those listings on the appropriate MLS. A month later,
CRMLS, Bright MLS, MRED, and other MLSs issued a
white paper “that called for collective action to address the
threat to the MLS system presented by the rise of pocket
listings and the prospect of a competing listing network that
would aggregate such listings.” A month after that, Bright
MLS adopted a policy consistent with the NAR board’s
recommendation, and CRMLS, Bright MLS, and MRED
met with other NAR-affiliated MLSs “at a [Council of
Multiple Listing Services] conference in Salt Lake City,
Utah to discuss the competitive threat presented by pocket
listings and the need for NAR to take action at the upcoming
NAR Convention to eliminate that threat through adoption
of” the policy nationwide. MRED’s CEO “explained that the
[policy] was motivated by concerns that pocket listings were
‘making the MLS less valuable.’”
The next month, NAR adopted the Clear Cooperation
Policy, which provides: “Within one (1) business day of
marketing a property to the public, the listing broker must
submit the listing to the MLS for cooperation with other
MLS participants.” This new policy meant that members of
a NAR-affiliated MLS who chose to list properties on PLS
were required to also list those properties on an MLS. Agents
PLS.COM V. NAT’L ASS’N OF REALTORS 9
who did not comply faced severe penalties, including in
some cases several-thousand dollar fines, or suspension
from, or termination of, their access to the MLS.
“NAR-affiliated MLSs and [the Council of Multiple
Listing Services] have admitted that the purpose of the Clear
Cooperation Policy was to maintain the market dominance
of the NAR-affiliated MLS system, and specifically to
exclude PLS.” PLS alleges that the Clear Cooperation Policy
has had its intended effect: After the Clear Cooperation
Policy was adopted, “[l]istings were removed from PLS and
submitted instead to NAR-affiliated MLSs,” “[a]gent
participation in PLS declined,” and “PLS was foreclosed
from the commercial opportunities necessary to innovate
and grow” “a critical mass of members and listings to create
a powerful network effect.”
PLS also alleges that the Clear Cooperation Policy
“harmed PLS and consumers in the relevant market by
excluding PLS.” Based on PLS’s briefing, we initially
understood this allegation to mean that PLS was driven from
the market. 2 At oral argument, however, PLS conceded that
it did not allege that the Clear Cooperation Policy drove it
from the market, and instead directed us to a news article,
which is not cited in the complaint, that suggests that PLS
has exited the market. Although the parties seem to agree
that PLS is no longer in the listing network services market,
our analysis at this stage is confined to the allegations in the
2
For example, PLS cites to this part of the complaint and states that
“competition from listing networks such as PLS that competed with the
MLSs was eliminated.” In its reply brief, PLS argues that “the graveyard
of the MLS Defendants’ former direct competitors—like PLS and the
Top Agent Network—proves that Clear Cooperation actually succeeded
at having [the] practical effect” of “driving those competitors out of
business.”
10 PLS.COM V. NAT’L ASS’N OF REALTORS
complaint, so we proceed on the understanding that the Clear
Cooperation Policy injured PLS but did not drive it from the
market.
PROCEDURAL BACKGROUND
Roughly seven months after the Clear Cooperation
Policy was adopted, PLS filed suit, alleging that the Clear
Cooperation Policy is an unreasonable restraint of trade in
violation of Section 1 of the Sherman Act and Section
1670(a)–(c) of California’s Cartwright Act. 3 PLS seeks
treble damages for its “lost profits and damaged equity and
goodwill” and a permanent injunction prohibiting
Defendants from enforcing the Clear Cooperation Policy.
Defendants moved to dismiss, arguing that PLS failed to
state a claim. The district court granted the motions to
dismiss because it concluded that PLS did not allege antitrust
injury, and it denied PLS leave to amend because it
determined that PLS could not cure this deficiency. The
district court also held that PLS did not adequately allege
that MRED participated in the alleged conspiracy. PLS
timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s dismissal of the complaint de
novo. City of Oakland v. Oakland Raiders, 20 F.4th 441, 451
(9th Cir. 2021). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
3
PLS’s claim is brought via the Clayton Act, 15 U.S.C. § 15, which
provides a private right of action for enforcing the Sherman Act and other
federal antitrust laws.
PLS.COM V. NAT’L ASS’N OF REALTORS 11
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
“when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The Cartwright Act
analysis mirrors the Sherman Act analysis, so we analyze
both claims together. See Cnty. of Tuolumne v. Sonora Cmty.
Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001).
ANALYSIS
I
At the outset, we hold that the district court erred when
it held that PLS did not adequately allege antitrust injury
because it did not allege harm to home buyers and sellers.
We begin with some general principles. The purpose of
the Sherman Act is “the promotion of consumer welfare.”
GTE Sylvania Inc. v. Cont’l T.V., Inc., 537 F.2d 980, 1003
(9th Cir. 1976). Therefore, the Act seeks “to preserve
competition for the benefit of consumers,” not competitors.
Am. Ad Mgmt. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1055
(9th Cir. 1999). But sometimes harm to a competitor also
harms competition which, in turn, harms consumers. For
example, predatory pricing designed to eliminate
“competitors in the short run and reduc[e] competition in the
long run . . . harms both competitors and competition” if the
predator can raise prices above the competitive level after its
rivals are driven from the market. Cargill, Inc. v. Monfort of
Colo., Inc., 479 U.S. 104, 117–18 (1986).
Congress has allowed competitors to enforce the
antitrust laws only when they have experienced an “antitrust
injury, which is to say injury of the type the antitrust laws
were intended to prevent.” Brunswick Corp. v. Pueblo Bowl-
O-Mat, Inc., 429 U.S. 477, 489 (1977). In other words, a
12 PLS.COM V. NAT’L ASS’N OF REALTORS
competitor has standing to assert a Sherman Act claim “only
when the claimed injury flows from acts harmful to
consumers.” Rebel Oil Co., Inc. v. Atl. Richfield Co., 51 F.3d
1421, 1445 (9th Cir. 1995). This requirement “ensures that
the harm claimed by the plaintiff corresponds to the rationale
for finding a violation of the antitrust laws in the first place.”
Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 342
(1990).
The district court held that these principles required PLS
to allege that the Clear Cooperation Policy directly harmed
“ultimate consumers”—which the court identified as “home
buyers and sellers”—to allege antitrust injury. (emphasis
added). According to the district court, PLS did not allege
antitrust injury because “PLS [did] not adequately allege that
the Clear Cooperation Policy has increased prices for
services purchased or otherwise paid for by home sellers and
buyers or that home sellers and buyers have been denied
brokerage services that they desire as a result of the Clear
Cooperation Policy.” The legal basis for the district court’s
conclusion is not clear. The district court appears to have
understood the term “consumer” to mean something like one
“who buys goods or services for personal, family, or
household use, with no intention of resale.” Consumer,
Black’s Law Dictionary (11th ed. 2019). But our use of the
term in the antitrust context has not been so limited. As our
opinion in Glen Holly Entertainment, Inc. v. Tektronix, Inc.,
352 F.3d 367 (9th Cir. 2003) demonstrates, a business that
uses a product as an input to create another product or service
is a consumer of that input for antitrust purposes and can
allege antitrust injury.
In that case, Tektronix and Avid Technology were the
only manufacturers of “non-linear editing systems” that
were used by film production companies to edit movies and
PLS.COM V. NAT’L ASS’N OF REALTORS 13
television shows. Id. at 368. Glen Holly purchased
Tektronix’s machines and leased them to digital film
companies or used them itself to provide editing services for
those companies. Id. at 369. Tektronix and Avid
unexpectedly formed an “alliance” and Tektronix agreed not
to sell its product anymore. Id. Glen Holly, which had
purchased only Tektronix’s product, was forced out of
business when its customers “refuse[d] to have their films
edited with [Tektronix’s] technology after they discovered
that the system had been discontinued” and Glen Holly could
not switch to Avid’s product due to its cost and
“insurmountable change-over complications.” Id. at 370.
Throughout the opinion, we characterized Glen Holly as
a “consumer-purchaser” and a “customer-consumer” of
Tektronix’s products and held that the alliance harmed
competition because it “limited consumers’ choice to one
source of output.” Id. at 368–69, 374. We also used
“consumer” and “customer” interchangeably, explaining, for
example, that “customers are the intended beneficiaries of
competition, and . . . customers are presumptively those
injured by its unlawful elimination.” Id. at 378 (emphasis
added). We ultimately held that Glen Holly adequately
alleged antitrust injury even though it was not an “ultimate
consumer” of movies and television shows. See id. at 374–
78.
As Glen Holly makes clear, our use of the term
“consumer” is not limited to “ultimate consumers” as the
district court appears to have understood the term.
Businesses that use a product or service as an input to
provide another product or service can be consumers for
antitrust purposes. Therefore, PLS was not required to allege
harm to home buyers and sellers to allege antitrust injury. Its
allegation that the Clear Cooperation Policy harmed real
14 PLS.COM V. NAT’L ASS’N OF REALTORS
estate agents—who are the consumers of PLS’s and the
MLSs’ listing network services—may suffice.
II
Our conclusion that PLS can adequately allege antitrust
injury without alleging harm to an “ultimate consumer” does
not answer the question of whether it has actually done so.
To allege antitrust injury, PLS must allege “(1) unlawful
conduct, (2) causing an injury to [PLS], (3) that flows from
that which makes the conduct unlawful, and (4) that is of the
type the antitrust laws were intended to prevent.” Am. Ad
Mgmt., 190 F.3d at 1055. “Without a violation of the
antitrust laws, there can be no antitrust injury.” Id. at 1056.
A
We consider first whether PLS has adequately alleged a
Sherman Act violation. The Sherman Act prohibits “[e]very
contract, combination . . . or conspiracy in restraint of trade.”
15 U.S.C. § 1. The Supreme Court has interpreted this
language to “prohibit only unreasonable restraints of trade.”
NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85,
98 (1984) (emphasis added). We use two kinds of analysis
to determine whether a restraint of trade is unreasonable: the
per se approach and the rule of reason. Some practices are
“so harmful to competition and so rarely prove justified that
the antitrust laws do not require proof that an agreement of
that kind is, in fact, anticompetitive in the particular
circumstances.” NYNEX Corp. v. Discon, Inc., 525 U.S. 128,
133 (1998). These practices are per se violations of the
Sherman Act, and we presume that they are anticompetitive
“without inquiry into the particular market context in which
[they] are found.” Bd. of Regents of Univ. of Okla., 468 U.S.
at 100.
PLS.COM V. NAT’L ASS’N OF REALTORS 15
Most restraints, however, are subject to the rule of
reason. Hahn v. Or. Physicians’ Serv., 868 F.2d 1022, 1026
(9th Cir. 1988). “The rule of reason requires courts to
conduct a fact-specific assessment of ‘market power and
market structure . . . to assess the restraint’s actual effect’ on
competition.” Ohio v. Am. Express Co., 138 S. Ct. 2274,
2284 (2018) (cleaned up) (quoting Copperweld Corp. v.
Indep. Tube Corp., 467 U.S. 752, 768 (1984)). A “three-step,
burden-shifting framework” guides courts’ analysis. Id.“Under this framework, the plaintiff has the initial burden to
prove that the challenged restraint has a substantial
anticompetitive effect that harms consumers in the relevant
market.” Id. “If the plaintiff carries its burden, then the
burden shifts to the defendant to show a procompetitive
rationale for the restraint.” Id. “If the defendant makes this
showing, then the burden shifts back to the plaintiff to
demonstrate that the procompetitive efficiencies could be
reasonably achieved through less anticompetitive means.”
Id.A plaintiff can establish a substantial anticompetitive
effect for purposes of the first step of the rule of reason
analysis either “directly or indirectly.” Id. To prove a
substantial anticompetitive effect directly, the plaintiff must
provide “‘proof of actual detrimental effects [on
competition]’ such as reduced output, increased prices, or
decreased quality in the relevant market.” Id. (quoting FTC
v. Ind. Fed’n of Dentists, 476 U.S. 447, 460 (1986)). When
a plaintiff does so, no “inquir[y] into market definition and
market power” is required. Ind. Fed’n of Dentists, 476 U.S.
at 460–61. To prove a substantial anticompetitive effect
indirectly, a plaintiff must show that the defendants have
market power in the relevant market and that “the challenged
restraint harms competition.” Am. Express Co., 138 S. Ct.
at 2284.
16 PLS.COM V. NAT’L ASS’N OF REALTORS
PLS argues that the Clear Cooperation Policy is an
unreasonable restraint of trade because it is an unlawful
group boycott. 4 Our court has found the following
description of a group boycott from the D.C. Circuit to be
helpful:
The classic “group boycott” is a concerted
attempt by a group of competitors at one level
to protect themselves from competition from
non-group members who seek to compete at
that level. Typically, the boycotting group
combines to deprive would-be competitors of
a trade relationship which they need in order
to enter (or survive in) the level wherein the
group operates. The group may accomplish
its exclusionary purpose by inducing
suppliers not to sell to potential competitors,
by inducing customers not to buy from them,
or, in some cases, by refusing to deal with
would-be competitors themselves. In each
instance, however, the hallmark of the “group
boycott” is the effort of competitors to
“barricade themselves from competition at
their own level.”
Smith v. Pro Football, Inc., 593 F.2d 1173, 1178 (D.C. Cir.
1978) (quoting L.A. Sullivan, Antitrust 230, 232, 244–45
(1977)) (footnotes omitted); accord Oakland Raiders,
20 F.4th at 453 n.5.
4
PLS also argues that the Policy is an agreement to restrict output.
Because we conclude that PLS adequately alleged a violation of the
Sherman Act through its group boycott theory, we decline to address its
alternative theory.
PLS.COM V. NAT’L ASS’N OF REALTORS 17
The Clear Cooperation Policy, as PLS characterizes it,
shares all the hallmarks of a group boycott: PLS’s
competitors coerced its suppliers (sellers’ agents) not to
supply PLS with listings (or to do so only on highly
unfavorable terms), and they did so for the express purpose
of preventing PLS, a new entrant to the market after decades
of little to no competition, from competing with the MLSs.
See NYNEX Corp., 525 U.S. at 135 (describing “a group
boycott in the strongest sense” as when a “group of
competitors threaten[s] to withhold business from third
parties unless those third parties . . . help them injure their
directly competing rivals”). PLS also alleges that the effort
succeeded: “Listings were removed from PLS and submitted
instead to NAR-affiliated MLSs,” “[a]gent participation in
PLS declined,” and “PLS was foreclosed from the
commercial opportunities necessary to innovate and grow.”
Therefore, PLS has adequately alleged a group boycott.
The district court appeared to agree with this conclusion
when it held that PLS adequately alleged that “the Clear
Cooperation Policy is a prima facie unreasonable restraint of
trade under the Rule of Reason framework.” But to the
extent the district court’s reference to the rule of reason
implicitly dismissed PLS’s per se claim, the district court
erred. Precisely which group boycotts qualify as per se
violations of the Sherman Act has been a source of confusion
for decades. In 1985, the Supreme Court observed that
“[t]here is more confusion about the scope and operation of
the per se rule against group boycotts than in reference to
any other aspect of the per se doctrine.” Nw. Wholesale
Stationers, Inc. v. Pac. Stationery & Printing, Co., 472 U.S.
284, 294 (1985) (quoting L. Sullivan, Law of Antitrust 229–
30 (1977)). In that case, the Court held that a group boycott
“generally” falls into the per se category if “the boycotting
firms possess[] a dominant position in the relevant market,”
18 PLS.COM V. NAT’L ASS’N OF REALTORS
they “cut off access to a supply, facility, or market necessary
to enable the boycotted firm to compete,” and the practice is
“not justified by plausible arguments that [it was] intended
to enhance overall efficiency and make markets more
competitive.” Id. at 294. At the same time, “a concerted
refusal to deal need not necessarily possess all of these traits
to merit per se treatment.” Id. at 295. The Court has provided
little guidance since then.
Defendants argue that the Policy is not a per se group
boycott because (1) it “does not cut off access to anything,
and brokers remain free to use PLS or any other listing
service,” (2) “on its face” it does not prevent real estate
agents from posting listings on competing networks or from
“making a choice about the listing network platforms in
which they choose to participate,” and (3) it is
procompetitive. 5 These arguments are not persuasive.
First, a group of competitors coercing a competitor’s
suppliers to sell to that competitor only on “unfavorable
terms” constitutes a group boycott even if the competitors do
not completely cut off the competitor’s access to inputs it
needs. Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S.
207, 209, 213 (1959). That is because businesses that can
obtain those inputs only on unfavorable terms are unlikely to
5
Defendants do not seriously dispute that PLS has adequately
alleged that they have market power. Defendants’ only argument
regarding market power is a single line in NAR’s brief, which states:
“PLS’s hazy, speculative allegations about market share do not plead the
necessary evidentiary facts to support its claims about market power.’”
(Citation and quotation marks omitted). But NAR never explains why it
believes PLS’s allegations are inadequate, and “a bare assertion does not
preserve a claim, particularly when, as here, a host of other issues are
presented for review.” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir.
1994).
PLS.COM V. NAT’L ASS’N OF REALTORS 19
be able to compete. See Nw. Wholesale Stationers, 472 U.S.
at 295 n.6 (noting that “a concerted refusal to deal . . . on
substantially equal terms . . . might justify per se
invalidation if it place[s] a competing firm at a severe
competitive disadvantage” (emphasis added)); see also Ind.
Fed’n of Dentists, 476 U.S. at 458 (characterizing a group
boycott as “a concerted refusal to deal on particular terms”
(emphasis added)).
Here, the Clear Cooperation Policy impaired PLS’s
ability to compete against the MLSs in the market for sellers’
listings on almost any dimension because it requires the vast
majority of PLS’s suppliers (sellers’ agents that are members
of a NAR-affiliated MLS) to supply to PLS’s dominant
competitors (NAR-affiliated MLSs) even if PLS’s product is
better on the merits. Regardless of what PLS does—whether
it charges less to list properties, provides a nationwide
network, or develops a better interface—agents who belong
to a NAR-affiliated MLS may not list on PLS without also
listing on an MLS. Thus, the Clear Cooperation Policy
essentially eliminates competition for most sellers’ agents’
listings between NAR-affiliated MLSs and rival services.
Defendants’ second argument—that the Clear
Cooperation Policy is not coercive because sellers’ agents
who wish to place some listings exclusively on competing
services may do so if they give up their access to the MLSs—
is even less persuasive. That is precisely the dilemma the
Sherman Act is designed to prevent. In every group boycott,
the dominant firms force their suppliers or customers to
choose between assisting the dominant firms in injuring their
competitors or working exclusively with those competitors,
knowing that because of the dominant firms’ market power
very few suppliers or customers will be able to rely
exclusively on the competitors. That the customers or
20 PLS.COM V. NAT’L ASS’N OF REALTORS
suppliers technically have a choice does not mean the group
boycott is not coercive.
Finally, Defendants argue that the Clear Cooperation
Policy is procompetitive because it “reduc[es] search and
transaction costs.” Although this contention is dressed up in
the language of economics, at its core it is just an argument
that the Clear Cooperation Policy benefits buyers’ agents
because it allows them to see more listings on the MLSs and
to avoid the need to consult competing services. This is not
a procompetitive justification because it does not explain
how the Clear Cooperation Policy enhances competition. At
bottom, Defendants argue that the Clear Cooperation Policy
results in a higher quality product: a listing service with all
of the publicly available listings in one place. But justifying
a restraint on competition based on an assumption it will
improve a product’s quality “is nothing less than a frontal
assault on the basic policy of the Sherman Act.” Nat’l Soc’y
of Pro. Eng’rs v. United States, 435 U.S. 679, 695 (1978).
The antitrust laws assume that “competition will produce not
only lower prices, but also better goods and services.” Id. If
Defendants are correct that buyers’ agents prefer listing
networks that offer more listings in one place, the MLSs
should be in a good position to compete with upstarts like
PLS. But the fact that PLS was growing rapidly despite the
MLSs’ larger inventory of listings might suggest that PLS
offered features that at least some buyers’ agents found
attractive, despite the lower concentration of listings. In the
end, sparing consumers the need to patronize competing
firms is not a procompetitive justification for a group
boycott. See id. at 689 (rejecting “the argument that because
of the special characteristics of a particular industry,
monopolistic arrangements will better promote trade and
commerce than competition”).
PLS.COM V. NAT’L ASS’N OF REALTORS 21
Although we hold that PLS has adequately alleged a per
se group boycott, we leave to the district court to determine
in the first instance whether it should apply per se analysis
or rule of reason analysis at later stages in this litigation.
B
Defendants next argue that PLS failed to state a claim
because it did not define the market properly, and did not
allege injury to participants on both sides of the market, as
they contend is required by Ohio v. American Express
Company, 138 S. Ct. 2274 (2018) (Amex). PLS responds that
Amex does not apply here, both because it does not apply at
the pleading stage and because it applies only to two-sided
platforms that facilitate simultaneous transactions, like
credit-card networks. PLS also argues that it has satisfied
Amex even if it does apply. We hold that Amex can apply at
the pleading stage in some circumstances, but that PLS has
satisfied Amex, so we need not resolve the more difficult
questions the parties raise about how broadly the Amex
decision applies.
(1)
In Amex, the federal government and several states
sought to prove that an anti-steering provision American
Express (Amex) imposed on merchants who chose to accept
its cards violated Section 1 of the Sherman Act. See 138 S.
Ct. at 2283. To understand the Court’s decision, one must
first have a basic understanding of Amex’s business model.
Briefly stated, credit-card companies earn revenue by
charging merchants fees, which are generally calculated as a
percentage of each transaction. Id. at 2281. Amex earns most
of its revenue from these fees, and Amex generally charges
merchants a higher percentage of each transaction than do its
rivals. Id. at 2282. As a result, merchants sometimes attempt
22 PLS.COM V. NAT’L ASS’N OF REALTORS
to persuade or incentivize customers to use different cards to
make their purchases. Id. at 2283. “This practice is known as
‘steering.’” Id. Amex’s anti-steering provision prohibits
merchants who accept its cards from steering customers
toward using other credit cards. Id.After a bench trial, the district court held that Amex’s
anti-steering provision violates the Sherman Act based on
the rule of reason because Amex has market power in the
transaction-processing market and has used that market
power to prohibit merchants from steering their customers
toward lower-cost cards, thereby “short-circuit[ing] the
ordinary price-setting mechanism” and eliminating “price
competition among American Express and its rival
networks.” See United States v. Am. Express Co., 88 F. Supp.
3d 143, 151–52 (E.D.N.Y. 2015). The Supreme Court
ultimately reversed and provided new instructions about
how to define the relevant market when analyzing a product
that is a two-sided platform.
According to the Court, “a two-sided platform offers
different products or services to two different groups who
both depend on the platform to intermediate between them.”
Amex, 138 S. Ct. at 2280. The Court offered two examples:
credit-card companies and newspapers. See id. at 2285–86.
Credit card companies, the Court explained, sell credit to
consumers on one side of the market and sell transaction-
processing services to merchants on the other side of the
market. Id. at 2280. Newspapers are also “arguably” two-
sided platforms: they sell advertising space to advertisers
and news to subscribers. Id. at 2286. The key difference
between two-sided platforms and traditional products is that
two-sided platforms “often exhibit what economists call
‘indirect network effects,’ . . . where the value of the two-
sided platform to one group of participants depends on how
PLS.COM V. NAT’L ASS’N OF REALTORS 23
many members of a different group participate.” Id. at 2280.
“A credit card, for example, is more valuable to cardholders
when more merchants accept it, and is more valuable to
merchants when more cardholders use it.” Id. at 2281.
The Court held that, for at least certain subsets of two-
sided platforms, courts must define the relevant market to
“include both sides of the platform” because one cannot
accurately assess the competitive impact of a particular
practice by looking to only one side of the market. Id. at
2286–87. 6 For instance, a credit card company might choose
to increase merchant fees and use the increased revenue to
offer more generous rewards for cardholders, thus reducing
the price to cardholders and keeping the overall cost of the
credit card service the same. Id. at 2281. The plaintiffs in
Amex failed to prove an anticompetitive effect at the first
step of the rule of reason analysis, the Court held, because
they “wrongly focus[ed] on only one side of the two-sided
credit-card market.” Id. at 2287. To meet their burden of
proof, they were required to prove anticompetitive effects
“on the two-sided credit-card market as a whole.” Id. In other
words, they were required to prove that the “provisions
increased the cost of credit-card transactions above a
competitive level, reduced the number of credit-card
transactions, or otherwise stifled competition in the credit-
card market.” Id.6
However, “it is not always necessary to consider both sides of a
two-sided platform.” Id. at 2286. For example, “the market for
newspaper advertising behaves much like a one-sided market and should
be analyzed as such.” Id.24 PLS.COM V. NAT’L ASS’N OF REALTORS
(2)
PLS argues that Amex has no role to play at the pleading
stage because the proper definition of the market and
whether a practice is anticompetitive “are fact-bound issues
not susceptible to resolution on a motion to dismiss.” We
disagree.
A plaintiff is not required to define a particular market
for a per se claim, see Bd. of Regents of Univ. of Okla.,
468 U.S. at 100; Big Bear Lodging Ass’n v. Snow Summit,
Inc., 182 F.3d 1096, 1104 (9th Cir. 1999), nor is it required
to do so for a rule of reason claim based on evidence of the
actual anticompetitive impact of the challenged practice, see
Ind. Fed’n of Dentists, 476 U.S. at 460–61. 7 PLS is therefore
correct that Amex does not apply to these claims. For rule of
reason claims based on indirect evidence, however, Amex
may play a role. For those claims, a plaintiff must define the
relevant market and show that the defendant has market
power in that market to prove that the challenged practice is
anticompetitive. See Amex, 138 S. Ct. at 2284. Since these
are elements of the claim, the plaintiff must plead facts that,
when accepted as true, show they are satisfied. Newcal
Indus., Inc. v. Ikon Off. Sol., 513 F.3d 1038, 1044 (9th Cir.
2008). If “the alleged market suffers a fatal legal defect,” the
court may dismiss the claim at the pleading stage. Id.
at 1045.
7
In Amex, the Supreme Court held that the plaintiffs were required
to define the relevant market even though they relied on direct evidence
of an anticompetitive impact. See Amex, 138 S. Ct. at 2285 n.7. But the
Court distinguished Amex, where the plaintiff complained of a vertical
restraint of trade, from cases like this one, where the plaintiff complains
of a horizontal restraint of trade. Id. Therefore, Amex did not disturb the
Indiana Federation of Dentists rule.
PLS.COM V. NAT’L ASS’N OF REALTORS 25
Although we hold that Amex can apply to rule of reason
claims based on indirect evidence at the pleading stage, we
do not hold that it always does. Under both parties’ theories,
whether Amex applies depends on the characteristics of the
relevant product. Defendants argue that strong indirect
network effects alone trigger Amex, while PLS argues that
simultaneous transactions are required. Either way, whether
Amex applies depends on the facts. In some cases, a plaintiff
will include facts in the complaint that disclose these
characteristics and thus trigger Amex. In others, the
complaint will not contain the necessary facts, and the court
may need to wait to examine the evidence to determine
whether Amex applies.
In this case, PLS alleges that the listing networks do not
facilitate simultaneous transactions, but they nevertheless
exhibit strong indirect network effects. Therefore, if PLS is
correct that Amex applies only to transaction networks, it
does not apply here. But if Defendants are correct that only
strong indirect network effects are required, then Amex does
apply because PLS alleged that the relevant products exhibit
strong indirect network effects. We need not resolve the
parties’ dispute regarding the precise characteristics that
trigger Amex, however, because PLS’s allegations satisfy
Amex, even if it applies.
(3)
The district court held that PLS failed to satisfy Amex
because “PLS does not allege a plausible injury to
participants on both sides of the market,” namely to “both
home sellers and home buyers.” Defendants also argue that
PLS failed to satisfy Amex because it did not “take account
of the impact of the Policy on home buyers (or their agents).”
As we have explained, the relevant consumers in this case
are buyers’ and sellers’ agents, not the people buying and
26 PLS.COM V. NAT’L ASS’N OF REALTORS
selling homes. But even substituting buyers’ agents and
sellers’ agents for the references to buyers and sellers, we
find ourselves puzzled by Defendants’ argument.
As a preliminary matter, Amex does not require a
plaintiff to allege harm to participants on both sides of the
market. All Amex held is that to establish that a practice is
anticompetitive in certain two-sided markets, the plaintiff
must establish an anticompetitive impact on the “market as
a whole.” 138 S. Ct. at 2287. Sometimes this will be by
alleging harm to participants on both sides of the market and
sometimes it will not. It is possible that a practice harming
participants on one side of the market could outweigh the
benefits to participants on the other, causing anticompetitive
effects on the market as a whole.
More importantly, although it is not required, PLS did
allege that the Clear Cooperation Policy harms competition
in the real estate listing network services market because it
injures both sellers’ agents and buyers’ agents. PLS alleges
that the Clear Cooperation Policy prevented innovative
competitors from entering the market and growing large
enough to meaningfully compete with the MLSs, leaving
both buyers’ agents and sellers’ agents with fewer choices,
supra-competitive prices, and lower quality products.
Defendants suggest that the purported benefits of the Clear
Cooperation Policy to buyers’ agents outweigh the costs to
buyers’ agents and sellers’ agents, so PLS did not adequately
allege harm to the market as a whole. But whether the
alleged procompetitive benefits of the Clear Cooperation
Policy outweigh its alleged anticompetitive effects is a
factual question that the district court cannot resolve on the
pleadings. See Amex, 138 S. Ct. at 2284 (describing the rule
of reason as a “fact-specific assessment” designed to
PLS.COM V. NAT’L ASS’N OF REALTORS 27
distinguish between anticompetitive and procompetitive
practices).
In sum, even if Amex were to apply to PLS’s indirect
evidence claim, PLS’s allegations satisfy Amex’s
requirements.
III
Having concluded that PLS has adequately alleged a
Sherman Act violation, we next examine the relationship
between that violation and PLS’s injury to determine
whether PLS has adequately alleged antitrust injury. We
hold that it has.
We find our precedent regarding antitrust injury in the
context of predatory pricing to provide a helpful guide. The
Supreme Court has held that a competitor can adequately
allege antitrust injury when it alleges that it has been injured
by a competitor’s predatory pricing. See Cargill, 479 U.S.
at 117–18. “Predatory pricing [is] pricing below an
appropriate measure of cost for the purpose of eliminating
competitors in the short run and reducing competition in the
long run.” Id. at 117. It “harms both competitors and
competition” because it “has as its aim the elimination of
competition.” Id. at 118. At the same time, the Court has
made clear that a competitor that loses profits or market
share due to a competitor’s non-predatory price cuts does not
experience antitrust injury because non-predatory price
competition is procompetitive. Id. at 116–17.
The same reasoning applies to group boycotts: the
Sherman Act prohibits group boycotts because they are
designed to drive existing competitors out of the market or
to prevent new competitors from entering, thus leaving
consumers with fewer choices, higher prices, and lower-
28 PLS.COM V. NAT’L ASS’N OF REALTORS
quality products. PLS alleges that is what happened here: the
Clear Cooperation Policy prevented PLS from gaining a
foothold in the market and makes it virtually impossible for
new competitors to enter, leaving agents with fewer choices,
supra-competitive prices, and lower quality products.
Therefore, PLS has adequately alleged antitrust injury. See
Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 195
(2010) (“[T]he ‘central evil addressed by Sherman Act § 1’
is the ‘elimin[ation of] competition that would otherwise
exist.’” (quoting 7 P. Areeda & H. Hovenkamp, Antitrust
Law ¶ 1462b, at 193–94 (2d ed. 2003))).
Defendants cite an out-of-context quotation from Pool
Water Products v. Olin Corporation, 258 F.3d 1024 (9th Cir.
2001), to argue that decreased market share and shifting
sales from one competitor to another can never constitute
antitrust injuries. They suggest that because PLS does not
allege that it was driven from the market entirely, there was
no antitrust injury. But that is not what Pool Water held. In
Pool Water, we held that the plaintiffs had “not presented
any evidence that [the defendants] engaged in predatory
pricing. Plaintiffs’ reduced profits attributable to defendants’
decrease in prices [was] therefore not an antitrust injury.” Id.
at 1036 (citations omitted). Nor was the plaintiffs’ decreased
market share. Id. Thus, Pool Water simply reiterated what
the Supreme Court had already made clear: injuries due to
lower prices are not antitrust injuries unless those lower
prices are predatory. It did not hold that injuries short of
being forced from the market—such as shifting sales or
decreased market share—never constitute antitrust injuries.
Contrary to Defendants’ argument, the Supreme Court
has long recognized that “competitors may be able to prove
antitrust injury before they actually are driven from the
market and competition is thereby lessened.” Brunswick
PLS.COM V. NAT’L ASS’N OF REALTORS 29
Corp., 429 U.S. at 489 n.14. And we recently reaffirmed that
“a plaintiff need not allege that the exclusionary conduct has
succeeded in displacing all competition” to “adequately
plead antitrust injury.” Ellis, 24 F.4th at 1274. Therefore, the
fact that PLS does not allege that it was driven from the
market does not mean that it failed to allege antitrust injury.
IV
Bright MLS and MRED argue that we should affirm the
district court’s dismissal of PLS’s claims against them even
if we hold that PLS has stated a claim against the other
Defendants because PLS did not adequately allege that they
were involved in the alleged conspiracy. Before turning to
the merits of these arguments, we must first determine
whether we have jurisdiction to consider the parties’ dispute
regarding MRED’s involvement.
A
At the time of PLS’s appeal, Federal Rule of Appellate
Procedure 3(c)(1)(B) required a party to “designate” in its
notice of appeal “the judgment, order, or part thereof being
appealed.” 8 This requirement is jurisdictional, so we must
assure ourselves that it is satisfied, even though no party has
raised it. Smith v. Barry, 502 U.S. 244, 248 (1992). PLS’s
8
Rule 3(c)(1)(B) was amended in April 2021 to eliminate the “or
part thereof” language because the advisory committee concluded that it
contributed to “the misconception that it is necessary or appropriate to
designate each and every order of the district court that the appellant may
wish to challenge on appeal” rather than simply designating the
judgment into which all of the district court’s orders merge.
Fed. R. App. P. 3(c) advisory committee’s note to 2021 amendment.
We quote the former language because the 2021 amendment did not
become effective until several months after PLS filed its notice of appeal.
30 PLS.COM V. NAT’L ASS’N OF REALTORS
notice of appeal identifies the object of its appeal as
“Subsection 1 of Order (ECF 97) dismissing First Amended
Complaint with prejudice and without leave to amend.” This
portion of the order addresses only whether PLS adequately
alleged antitrust injury. But PLS’s opening brief also
challenges the district court’s holding in Subsection 3 of its
order that PLS did not adequately allege that MRED was part
of the alleged conspiracy. If PLS had simply designated the
entire order or the district court’s judgment as the object of
its appeal, we would clearly have jurisdiction to review
Subsection 3. But PLS’s designation of only Subsection 1
muddies the waters. Nevertheless, we hold that we have
jurisdiction to review Subsection 3.
We have not required technical compliance with Rule
3(c)(1)(B). Le v. Astrue, 558 F.3d 1019, 1022 (9th Cir.
2009). To determine whether we have jurisdiction to
entertain an appeal from a portion of an order that is not
designated in the notice of appeal, we have applied a two-
part test. See id. at 1022–23. At the first step, we determine
“whether the intent to appeal a specific judgment can be
fairly inferred,” and at the second step, we analyze “whether
the appellee was prejudiced.” Id. at 1023 (quoting Lolli v.
Cnty. of Orange, 351 F.3d 410, 414 (9th Cir. 2003)).
When examining whether the appellant’s intent to appeal
a portion of an order can be fairly inferred, we have not
limited ourselves to inferences from the face of the notice of
appeal; we have also inferred “appellants’ intent to appeal
. . . from their briefs,” and from an appellant appealing
another portion of the same order. West v. United States,
853 F.3d 520, 524 (9th Cir. 2017) (holding that notice of
appeal designating the district court’s dismissal of some
counts against one defendant “sufficiently indicated [the
plaintiff’s] intent to appeal the entire district court order,”
PLS.COM V. NAT’L ASS’N OF REALTORS 31
including the dismissal of the plaintiff’s claims against
another defendant); see also Le, 558 F.3d at 1021, 1024–25.
In addition, we have held that when an “appellee has argued
the merits [of the disputed issue] fully in its brief, it has not
been prejudiced by the appellant’s failure to designate
specifically an order which is subject to appeal.” Le,
558 F.3d at 1025 (quoting Lockman Found. v. Evangelical
All. Mission, 930 F.2d 764, 772 (9th Cir. 1991)). PLS’s
opening brief notified Defendants that it sought to appeal
Subsection 3 of the district court’s order and Defendants
have fully briefed the issue. We therefore have jurisdiction
to address the district court’s holding that PLS did not
adequately allege that MRED was involved in the alleged
conspiracy.
B
Turning to the merits, we hold that PLS adequately
alleged that Bright and MRED were involved in the alleged
conspiracy. “Section 1 applies only to concerted action that
restrains trade.” Am. Needle, 560 U.S. at 190. Therefore, to
adequately allege that Defendants violated Section 1, PLS
must allege that Defendants’ conduct was concerted action
and was “not merely parallel conduct that could just as well
be independent action.” Twombly, 550 U.S. at 557. A formal
agreement is not necessary. Interstate Cir. v. United States,
306 U.S. 208, 227 (1939). All that is required is “a conscious
commitment to a common scheme designed to achieve an
unlawful objective.” Monsanto Co. v. Spray-Rite Serv.
Corp., 465 U.S. 752, 764 (1984) (quoting Edward J.
Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111
(3d Cir. 1980)).
PLS has satisfied this requirement. Specifically, PLS
alleges that MRED and other MLSs conceived of the Clear
Cooperation Policy through “private interfirm
32 PLS.COM V. NAT’L ASS’N OF REALTORS
communications,” including at a meeting of “NAR’s MLS
Technology and Emerging Issues Advisory Board” that
MRED’s CEO attended. PLS then alleges that MRED,
Bright, and CRMLS signed a white paper “call[ing] for
collective action to address the threat to the MLS system
presented by . . . the prospect of a competing listing
network.” That same day, “MRED published a statement
supporting adoption by NAR of the Clear Cooperation
Policy at the upcoming NAR convention.” The next day,
MRED and other NAR-affiliated MLSs met in Salt Lake
City “to discuss the competitive threat presented by pocket
listings and the need for NAR to take action at the upcoming
NAR Convention to eliminate that threat through adoption
of the Clear Cooperation Policy.” MRED’s CEO and
Bright’s Chairman both addressed representatives of NAR-
affiliated MLSs at the CMLS conference in Salt Lake City
and urged them to adopt the Clear Cooperation Policy, and
to encourage NAR’s Board of Directors to do the same.
Bright’s CEO said, among other things, “We have an
opportunity in front of us to make, put this policy into effect
in November. And Bright adopted it yesterday, MRED’s
already adopted it, other people are already doing it, but we
really need to get it through.” The next month, Bright and
MRED executives advocated for the policy at a meeting of
NAR’s Multiple Listing Issues and Policies Committee,
where the policy was approved. Two days later, NAR’s
Board of Directors formally adopted it.
These allegations suggest that Bright and MRED agreed
to adopt the Clear Cooperation Policy and then worked
together to ensure that NAR required it so that every NAR-
affiliated MLS would be forced to adopt it too. Therefore,
PLS has plausibly alleged that Bright and MRED acted in
concert rather than independently.
PLS.COM V. NAT’L ASS’N OF REALTORS 33
Bright argues that because PLS alleges it adopted “a
version of what would become the Clear Cooperation Policy
. . . before having any obligation under NAR rules . . . to do
so,” PLS has not alleged that it adopted the policy pursuant
to an agreement. But PLS is not required to allege that Bright
adopted the Policy because of NAR’s rule. All that PLS must
allege is that Bright adhered to a common scheme. Whether
it did so by formally adopting the Clear Cooperation Policy
after NAR required it or by voluntarily adopting a
substantially equivalent policy beforehand makes no
difference. See Interstate Cir., 306 U.S. at 227 (“Acceptance
by competitors, without previous agreement, of an invitation
to participate in a plan, the necessary consequence of which,
if carried out, is restraint of interstate commerce, is sufficient
to establish an unlawful conspiracy under the Sherman
Act.”).
V
We hold that PLS adequately alleged a violation of the
Sherman Act and antitrust injury. We therefore reverse the
district court’s dismissal of PLS’s complaint and remand for
further proceedings consistent with this opinion.
REVERSED and REMANDED.