Defendants seek dismissal of Homie’s antitrust lawsuit

The remaining defendants in Homie Technologies’ antitrust suit are seeking to have the case dismissed. On Friday, the National Association of Realtors (NAR), Anywhere Real Estate, Keller Williams Realty, HomeServices of America and RE/MAX filed motions to dismiss the suit, which was originally filed in mid-August in U.S. District Court in Utah.

In the suit, Homie claims it was harmed by the anticompetitive practices of NAR and the brokerage defendants. It said it filed the suit to “recover the damages … suffered as an excluded competitor foreclosed by the Defendants’ conduct from effective competition in the relevant market.”

As a flat-fee brokerage, Homie charged sellers a flat fee to list their property on the MLS. While Homie sellers typically offered buyer agent compensation, the firm said these amounts were usually lower compared to offers by sellers working with traditional brokers. Due to this, Homie alleges that local brokers and agents boycotted Homie and its listings, contributing to some of its financial distress.

All five of the remaining defendants made similar claims in their motions. These include that the jurisdiction for the suit is incorrect, since none of them are based in or have employees in Utah, and that the claims made in the complaint are not new.

In its motion, Keller Williams claimed that Homie is trying to “piggyback on antitrust lawsuits previously brought against Keller Williams by home sellers and buyers.”

Similarly, in a joint motion, RE/MAX and Anywhere wrote that Homie is seeking to “ride the coattails of other antitrust cases brought by consumers of real estate brokerage services.” But the defendants note that unlike the consumer-driven suits, Homie did not purchase brokerage services from any of the defendants.

“If Homie’s allegations in its Complaint are credited, and the NAR Rules did increase the price of brokerage services, then home sellers (the consumers of brokerage services) might be harmed but real estate brokerages (the providers of the services) would be helped because the brokerages would either make more money or take market share by charging less. And Homie is a broker! As a seller of brokerage services, not a consumer of them, it would be helped by higher prices,” the motion states.

RE/MAX and Anywhere claim that in becoming the fifth-largest brokerage in Utah, Homie was in fact helped by NAR rules and not hurt by them, as the firm alleges in its complaint.

According to NAR’s filing, in Homie’s factual allegations, instead of showing that Homie was injured, the firm showed that it “stood to benefit from the higher prices caused by the alleged conspiracy; overcame any barriers to entry caused by the alleged conspiracy; or was harmed by something other than Defendants’ actions.”

The defendants also addressed the allegations of a boycott. According to RE/MAX and Anywhere, Homie’s claim of a boycott should fail because “the existence of the alleged conspiracy is implausible.” They also say the complaint lacks any allegations of how the firms “organized, joined, directed, or participated in a boycott of Homie.”

“The only non-conclusory allegations addressing Anywhere or [RE/MAX] are that independent real estate agents associated with their respective brands participated in NAR and MLS-related boards involved in rulemaking,” the motion states. “But the alleged group boycott is separate from the NAR Rules — there isn’t a Rule saying ‘boycott Homie.’ Although Homie alleges the NAR Rules ‘facilitated’ the boycott, this conclusory allegation is contentless and does not support a claim.”

In its motion, Keller Williams called out social media posts and text messages that Homie cites as evidence of a boycott. According to Keller Williams, the posts and messages included in the complaint are “plainly insufficient to plead that Keller Williams joined a boycott.”

“Those social media posts and messages are not even alleged to have been made by Keller Williams or its affiliates. Instead, Homie alleges they were made by unidentified real estate agents working at ‘[l]ocal NAR members’ in Utah,” the filing states.

Keller Williams claims that the messages and posts are not indicative of a conspiracy. It noted U.S. Supreme Court precedent that boycotts cannot be defined as “concerted refusal[s] to engage in particular transactions until the terms of those transactions are agreeable.”

The defendants also claim that the allegations are “stale,” as HomeServices of America put it, as the NAR rules at the center of the suit were enacted more than four years before Homie filed its complaint.

“To the extent those rules caused Plaintiff any harm, that harm was necessarily suffered as soon as Plaintiff entered the market in 2015,” HomeServices’ filing states. “Thus, the statutes of limitations have run, and Plaintiff’s claims must be dismissed.”

Last week, Homie notified the court that it had voluntarily dismissed Wasatch Front Regional MLS, which does business as UtahRealEstate.com, from the suit. But the MLS defendant was dismissed without prejudice, which means Homie could refile the case.