Sitzer v. National Association of Realtors

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

SCOTT AND RHONDA BURNETT, RYAN )

HENDRICKSON, JEROD BREIT, SCOTT )

TRUPIANO, AND JEREMY KEEL, on behalf )

of themselves and all others similarly situated, )

)

Plaintiffs, )

)

v. ) Case No. 4:19-cv-00332-SRB

)

THE NATIONAL ASSOCIATION OF )

REALTORS, REALOGY HOLDINGS CORP., )

HOMESERVICES OF AMERICA, INC., BHH )

AFFILIATES, LLC, HSF AFFILIATES, LLC, )

RE/MAX LLC, and KELLER WILLIAMS )

REALTY, INC., )

)

Defendants. )

ORDER

Before the Court are four motions for summary judgment filed by Defendants Keller

Williams Realty, Inc. (“Keller Williams”) (Doc. #917); Re/Max, LLC (“Re/Max”) (Doc. #925);

HomeServices of America, Inc., BHH Affiliates, LLC, and HSF Affiliates, LLC (collectively,

“HomeServices Defendants”) (Doc. #927); Realogy Holding Corp. (“Realogy”) (Doc. #928);

and National Association of REALTORS® (“NAR”) (collectively, “Defendants”) (Doc. #930).1

As set forth below, the motions are DENIED.

1 The Court finds that the facts and legal arguments set forth in Defendants’ motions are similar enough to warrant

resolution in a single order. The Court will note if and where the parties’ arguments differ.

I. BACKGROUND

For the purpose of resolving the pending motions, the following facts are uncontroverted

or deemed uncontroverted by the Court.2 Additional facts relevant to the parties’ arguments are

set forth in Section III. Only those facts and issues necessary to resolve the pending motions are

discussed below, and they are simplified to the extent possible.

A. The Parties

Plaintiffs Rhonda Burnett, Scott Burnett, Ryan Hendrickson, Jerod Breit, Scott Trupiano,

Jeremy Keel, Frances Harvey, Hollee Ellis, and Shelly Dreyer (collectively, “Plaintiffs”) are

individuals who sold their homes through the use of a Multiple Listing Service (“MLS”),

discussed in more detail below. Plaintiffs bring this action on behalf of themselves, as well as all

persons who listed properties on the relevant Multiple Listing Services and who paid a buyer

broker commission from April 9, 2015, to present.

NAR is a trade association that operates local, state, and national real estate associations.

Membership in a local association automatically enrolls a broker in the corresponding state and

national associations. NAR adopts rules that govern its members through its Handbook on

Multiple Listing Policy (“MLS Handbook”) and Code of Ethics. NAR has 1.5 million members,

1,200 local associations or boards, and operates in all 50 states.

The HomeServices Defendants3, Keller Williams, Realogy4, and Re/Max (collectively,

the “Franchisor Defendants”) are national real estate broker franchisors that operate brokerage

2 The facts discussed below are taken from the parties’ briefs and exhibits, without further quotation or attribution

unless otherwise noted.

3 HomeServices of America, Inc. (“HSoA”) is a holding company and subsidiary of Berkshire Hathaway Energy

Company. HSoA holds HSF Affiliates, LLC (“HSF”), which owns BHH Affiliates, LLC (“BHH”). HSoA owns

three brokerages within Missouri: ReeceNichols, BHHS Kansas City, and BHHS Alliance Real Estate. BHH

operates the Berkshire Hathaway Home Services (“BHHS”), and previously operated the Real Living network.

Robert Moline (“Moline”), President and Chief Operating Officer of HSoA from 2008–2017, testified that

subsidiaries, franchisees, or affiliates. The Franchisor Defendants compete for brokerages and

affiliated agents. (Doc. #990, p. 11.)

B. A Typical Home Sale

In a standard residential real estate transaction in the United States, a homeowner

(“Seller”) sells their home to a buyer (“Buyer”). Both Sellers and Buyer retain their own

brokers. As compensation for their services, the Seller’s broker (“Seller-Broker”) receives

compensation, or a commission, calculated as a percentage of a home’s sale price. The Seller-

Broker’s commission is set out in the home’s listing agreement. Further, in the United States, a

standard listing agreement provides that the Seller-Broker will split or share their commission

with the Buyer’s broker (“Buyer-Broker”). The Seller-Broker and Buyer-Broker generally split

commissions 50/50. (Doc. #963-49, p. 5.) The Franchisor Defendants receive a percentage of

their affiliated brokers’ commissions.

Most transactions in the United States are facilitated by the use of an MLS. An MLS is a

database of properties listed for sale in a defined geographic region. Seller-Brokers and Buyer-

Brokers use the MLS to publish and search for property listings. In 2020, 91% of homes sold

were listed on an MLS. (Doc. #922-2, p. 29.) MLS membership is considered essential to

brokers. Four MLS are at issue in this case: Kansas City MLS (“Heartland MLS”), St. Louis

MLS (“MARIS MLS”), Springfield, Missouri MLS (“Southern Missouri Regional MLS”), and

Columbia, Missouri MLS (“CBOR MLS”) (collectively, “Subject MLS”).

franchises associated with HSF and BHHS were considered “wholly-owned” subsidiaries of HSoA. (Doc. #963-46,

p. 8.) HSF is an entity that oversees both independent and branded franchises. BHH has eight franchisees operating

in Missouri; two are owned by HSoA and six are independently owned.

4 Realogy owns and operates a subsidiary, NRT Missouri LLC d/b/a Coldwell Banker Gundaker, which is a real

estate brokerage that operates within the Subject MLS. On June 9, 2022, Realogy rebranded and is now known as

Anywhere Real Estate Inc.; but, for the purposes of this motion, the Court will refer to it as Realogy.

In order to list a property on an MLS, the Seller-Broker must be a participant of the MLS

and abide by the MLS’s rules. NAR requires that any MLS affiliated with NAR, including the

Subject MLS, comply with NAR’s governing rules, which include the MLS Handbook and Code

of Ethics. Therefore, all Subject MLS participants are bound by NAR’s MLS Handbook and

Code of Ethics. The Franchisor Defendants operate within the Subject MLS.

C. The MLS and Cooperative Compensation

In 1996, NAR’s Multiple Listing Issues and Policies Committee (“the MLS Committee”)

adopted a rule requiring that a Seller-Broker who lists on an MLS make blanket unilateral offers

of commission to any Buyer Broker:

In filing property with the multiple listing service, participants make blanket

unilateral offers of compensation to the other MLS participants and shall therefore

specify on each listing filed with the service the compensation being offered by

the listing broker to the other MLS participants.

(Doc. #963-72, p. 55.) This rule is incorporated into NAR’s MLS Handbook at Section 2-G-1

(hereinafter “Section 2-G-1”).

Section 2-G-1 prohibits participants from “publish[ing] listings that do not include an

offer of compensation” or “include general invitations . . . to discuss terms and conditions of

possible cooperative relationships.” (Doc. #963-72, p. 56.) “Entitlement” to a blanket unilateral

offer of compensation “is based on being the procuring cause[,]” or bringing the buyer to the

table, and is not “based on the hours an individual has worked or different services that the

individual has provided.” (Doc. #963-76, p. 5.) Compliance with Section 2-G-1 is mandatory in

order to post listings on the MLS.

NAR’s Code of Ethics also requires Seller-Brokers to compensate Buyer-Brokers: “In

cooperative transactions REALTORS® shall compensate cooperating REALTORS®[.]”

(Doc. #963-11, p. 8) Article 3 of the Code of Ethics states that “REALTORS® shall cooperate

with other brokers except when cooperation is not in the client’s best interest.” (Doc. #931-22,

p. 4.) Plaintiffs have put forth evidence indicating that “the public marketing of a listing

indicates that the [Seller-Broker] has concluded that cooperation with other MLS participants is

in their client’s best interest.” (Doc. #963-84, p. 4.) At the oral arguments held on these

motions, the parties agreed there is no such thing as a non-cooperative transaction that is

facilitated by an MLS. Additionally, the Code of Ethics requires that any negotiation of the

cooperative compensation offer must occur before the property is shown and cannot be

negotiated after that point. (Doc. #963-11, p. 7;) (Doc. #963-78, p. 3.)

The Franchisor Defendants require their franchisees to be members of NAR and/or abide

by NAR’s Code of Ethics. As part of a broker’s employment with Keller Williams5 and

Re/Max,6 they are required to maintain NAR membership, and therefore follow NAR’s Code of

Ethics and Rule 2-G-1. Since 2015, HSoA encouraged its franchisees to be members of NAR.7

(Doc. #966-30, pp. 6–7; Doc. #963-40, p. 8.) BHH, a subsidiary of HSoA, requires its

5 Plaintiffs produced Keller Williams’s “Policies and Guidelines Manual,” revised on April 1, 2020, which requires

its brokers to “become members of their local Board/Association of REALTORS® and MLS except when exempted

by their TL, and will keep their membership current and active at all times.” (Doc. #963-23, p. 8.)

6 Plaintiffs produced a “Franchise Disclosure Document” issued by Re/Max in 2014 that states: “You agree that you

and each of your Sales Associates will join and remain a member in good standing and comply with the by-laws and

rules and regulations of a local Board of REALTORS® (or comparable organization[.]” (Doc. #963-98, p. 3.)

Plaintiffs also produced a brokerage agreement requiring brokers to “maintain membership . . . with the National

Association of REALTORS® (“NAR”) . . . [and] abide by the Code of Ethics promulgated by NAR and all of the

rules and regulations of NAR and each local or regional MLS in which Broker participates.” (Doc. #963-99, p. 4.)

7 HomeServices’s Code of Business Conduct, published in 2013, stated:

You are encouraged to belong to trade associations when such groups contribute significant

benefits sufficient to justify the time and cost of membership or support. By their nature, trade

associations involve meetings and discussions with competitors and care must be taken to avoid

antitrust problems. You must obtain permission from a corporate officer before joining a trade

association and before you appear at any meeting as a speaker or a member of a panel where

statements will be made on behalf of the company.

(Doc. #963-111, p. 34.) The Court finds that Plaintiffs have produced evidence creating a genuine dispute of

material fact as to whether HSoA required its franchisees and affiliated agents to be members of NAR.

franchisees to “at all times comply with the Code of Ethics of the National Association of

Realtors[.]” (Doc. #963-41, p. 16.) Until July 2022, Realogy’s franchise agreements required its

franchisees to follow NAR’s Code of Ethics, “whether or not they are members of NAR,” and

encourages them to become members of NAR. Realogy’s subsidiary, Coldwell Banker

Gundaker, requires that its brokers are members of NAR. Realogy, in its 2020 annual filing with

the United States Securities and Exchange Commission, states, “We are a member of many

[MLS] . . . and a member of [NAR] . . . and, accordingly, are subject to each group’s rules,” and

defines the term “we” as referring to Realogy Holdings Corporation and its subsidiaries.

(Doc. #963-103, pp. 3, 5.)

The Franchisor Defendants’ executives testified that cooperative compensation, codified

by Section 2-G-1, is beneficial and a core component of organized real estate. (Doc. #963-66,

p. 6;) (Doc. #963-54, p. 8;) (Doc. #990, p. 27;) (Doc. #963-68, p. 2.) Gino Blefari (“Blefari”),

CEO of HSoA and Chairman of both HSF and BHH, testified that “coupled with the duty to

cooperate, th[e] unconditioned offer of compensation is a chief rationale for the existence of the

[MLS]” and “a core component of organized real estate[.]” (Doc. #963-54, p. 8.) Blefari also

stated in a scripted training video: “The only way you can eliminate all competition is to include

them.” (Doc. #990, p. 27.) Gary Keller (“Keller”), founder and current Executive Chairman of

Keller Williams, coined the term “co-opetition” to describe “cooperative competition” among

“trade associations, local boards, and multiple listing services.” (Doc. #963-31, p. 3.) Keller

testified that “the reason real estate is so cooperative is because [NAR] and the MLS gave

evolved into a system that inspires cooperation amongst competitors.” (Doc. #963-62, p. 6.)

Re/Max Founder and Chairman of the Board, Dave Lininger, testified that he believes sharing

average commission rates publicly is beneficial. (Doc. #963-66, p. 8.)

NAR’s CEO, Dale Stinson (“Stinson”), believes that there are “threats to the system” that

include “commission-thirsty outsiders, broker/association and broker/MLS chafing, [and] data

syndication offenders.” (Doc. #963-50, pp. 3–4.) To fight these threats, Stinson believes that

“Brokers, Agents, Franchises, Independents, the National, State, and Local Associations, the

Institutes, Societies, and Councils, and the MLSs” must “ORGANIZE AS ONE AND COMMIT

TO EACH OTHER WITH URGENT RESOLVE.” (Doc. #963-50, pp. 3–4) (emphasis in

original). In discussing the benefits of “[o]rganized real estate,” Stinson states, “Where else

would the offer of cooperation and compensation have come from?” (Doc. #963-50, pp. 4.)

Robert Moline (“Moline”), HSoA’s prior President and COO, testified that he “always

thought you could do real estate so much less expensive if” the United States adopted an

“auctioneering model” that exists in Australia. (Doc. #963-46, p. 6.) Moline was interviewed

for a report published by NAR, and discussed the dangers of “commissions spiral[ing]

downward” if Buyers find ways to avoid using brokers, noting that brokerage fees in the United

States are higher than other developed countries. (Doc. #966-40, pp. 25–26.)

D. NAR’s Clear Cooperation Rule

In 2019, NAR adopted the Clear Cooperation Rule. This rule requires all listings to be

posted on the MLS within one “business day of marketing a property to the public,” which

includes “flyers displayed in windows, yard signs, digital marketing . . . and applications

available to the general public.” (Doc. #963-72, p. 78.) The Clear Cooperation Rule’s rationale

is that MLS participation “is procompetitive and proconsumer.” (Doc. #966-42, p. 4.) If a Seller

“refuses to permit the listing to be disseminated by the service,” the Seller-Broker must still file

it on the MLS but must include a “certification signed by the seller that he does not desire the

listing to be disseminated by the [MLS].” (Doc. #963-72, p. 80.) NAR’s position is that the

Clear Cooperation Rule is “consistent with . . . the NAR Code of Ethics[,]” which requires

cooperation with competitors when in the client’s best interest, because “the public marketing of

a listing indicates that the MLS Participant has concluded that cooperation with other MLS

participants is in their client’s best interests.” (Doc. #966-43, p. 8.)

The HomeServices Defendants campaigned for NAR to adopt the Clear Cooperation

Rule. Blefari stated that it was HSoA’s opinion the Clear Cooperation Rule should be adopted

because “[o]ff-MLS listings aren’t good for consumers, and they aren’t good for competition.”

(Doc. #963-89, p. 2.) Blefari stated that pocket listings, or houses listed privately and outside of

an MLS, “threaten[] the fundamental concept of cooperation that is the bedrock of our

industry[.]” (Doc. #973-89, p. 2.) Blefari encouraged recipients to share his message with any

“managers or agents who are Directors of NAR, or members of the MLS Committee that will

vote on this important rule” to garner support and “put a stop to wide use of pocket listings.”

(Doc. #963-89, p. 3.)

E. Training

The Franchisor Defendants provided training to brokers which directed them to offer a

6% commission rate, to be split equally among the Seller-Broker and the Buyer-Broker. The

Franchisor Defendants used this 6% commission rate split in educational transaction models.

For example, Re/Max training documents instructed brokers to develop their “Economic Model”

and “define the ‘average’ commission that will come from each of [their] closings,” including an

example of a 6% commission rate per transaction, split 50/50 between the Seller-Broker and

Buyer-Broker. (Doc. #964-30, p. 4.) Similarly, Keller Williams trained its brokers to develop an

“economic model” which provided a “standard 6% commission” rate per transaction, split 50/50

between the Seller-Broker and Buyer-Broker. (Doc. #964-46, p. 8; Doc. #964-43, p. 12.)

Additionally, the HomeServices Defendants circulated training materials from Intero, a

California subsidiary, that instructed brokers to “[a]lways have 6% written in on ALL listing

agreements” and, if they “have to give something,” to “remember [they] always have to pay [the

Buyer-Broker] a minimum of 2.5%.” (Doc. #966-55, p. 3.)

Further, the Franchisor Defendants trained brokers to never lower their rates. For

example, Re/Max trained brokers to “[h]ave the commission typed into the listing agreement”

before speaking to Sellers, and to tell Sellers “‘This is what my company charges.’”

(Doc. #964-35, p. 4.) Re/Max franchises must “maintain . . . quality,” including avoiding

“[d]iscount[ing] rates,” or the franchise may be sold. (Doc. #962-42, p. 5.) Keller Williams

provided brokers with scripted responses to requests to lower commissions, stating that brokers

“require a full 6 percent” to “do the advertising that [they] do” and that a “discount rate will not

provide you with enough exposure to get you top dollar[.]” (Doc. #964-47, p. 5.) Realogy

acknowledged that its franchisees compete with one another, and instructs franchisees to “avoid

any action or discussion intended to eliminate or restrict competition” including discussions of

“commission structures[.]” (Doc. #964-58, p. 3.) However, Realogy provided training to its

franchisees and subsidiaries regarding commissions and trains its agent to tell clients they cannot

cut commissions.

F. The Instant Action

The instant action’s procedural history is set out in the Court’s prior Orders and need not

be repeated here. Only the facts and issues relevant to the resolution of the pending motions are

discussed. Plaintiffs assert three claims against Defendants in their First Amended Complaint:

(1) Count I: Violation of Section 1 of the Sherman Act, 15 U.S.C. § 1; (2) Count II: Violation of

the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.010 et seq.; and (3) Count III:

Violation of the Missouri Antitrust Law, Mo. Rev. Stat. § 416.031. Plaintiffs allege Defendants

adopted and imposed Section 2-G-1, an anticompetitive restraint, that inflated residential real

estate commissions throughout Missouri in the Subject MLS.

On August 29, 2022, the Court granted HomeServices’ motion to stay this case as to

claims asserted by unnamed class members, pending appeal of the Court’s denial of its motion to

compel arbitration. (Doc. #916.) This Order does not address or dispose of any claims asserted

by the unnamed class members against HomeServices. On August 29, 2022, Defendants filed

the instant motions for summary judgment. Plaintiffs oppose the motions. The parties’

arguments are addressed below.

II. LEGAL STANDARD

Under Rule 56, summary judgment is warranted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The moving party has the burden of identifying “the basis for its

motion, and must identify those portions of the record which it believes demonstrate the absence

of a genuine issue of material fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th

Cir. 2011) (en banc) (cleaned up). If the moving party makes this showing, “the nonmovant

must respond by submitting evidentiary materials that set out specific facts showing that there is

a genuine issue for trial.” Id. (quotation marks omitted). “Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Id. (quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on Counts I–III. The Court will address the

parties’ arguments as to (A) Counts I and III, Plaintiffs’ antitrust claims, and (B) Count II,

Plaintiffs’ MMPA claims, separately below.

A. Counts I & III, Antitrust Claims

Defendants argue that summary judgment is appropriate on Counts I and III, which allege

violations of the Sherman Act and the Missouri Antitrust Law. Plaintiffs disagree, arguing that

genuine issues of material fact preclude summary judgment. As both Counts I and III are

analyzed under the same applicable legal standards,8 the parties’ arguments are addressed below

as follows: (1) whether Plaintiffs have antitrust standing; (2) whether Plaintiffs have produced

evidence of a conspiracy; (3) whether Plaintiffs have produced evidence that Section 2-G-1

restrains trade; and (4) whether Plaintiffs have produced evidence of an antitrust injury.

The Sherman Act prohibits “[e]very contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade.” 15 U.S.C. § 1. “The Sherman Act was

specifically intended to prohibit independent businesses from becoming ‘associates’ in a

common plan which is bound to reduce their competitor’s opportunity to buy or sell the things in

which the groups compete.” Associated Press v. United States, 326 U.S. 1, 15 (1945). “To

establish a claim under Section 1 of the Sherman Act, a plaintiff must demonstrate (1) that there

was a contract, combination or conspiracy; (2) that the agreement unreasonably restrained trade;

and (3) that the restraint affected interstate commerce.” Wholesale Alliance, LLC v. Express

Scripts, Inc., 366 F. Supp. 3d 1069, 1076 (E.D. Mo. 2019) (citation omitted). As the parties have

stipulated to the third element, the Court will address only the first two elements.

1. Standing

As a threshold issue, NAR asserts that Plaintiffs lack standing to assert Counts I and III.

Plaintiffs allege they were harmed because they overpaid for the Buyer-Broker’s services, which

8 See Mo. Rev. Stat. § 416.141 (stating the Missouri Antitrust Law “shall be construed in harmony with ruling

judicial interpretations of comparable federal antitrust statutes”); see also State of Mo. v. Nat’l Org. for Women, Inc.,

620 F.2d 1301, 1316 (8th Cir. 1980) (holding that “the Missouri antitrust law . . . can be disposed of with the same

rationale with which we have disposed of the Sherman Act claim”) (citing Mo. Rev. Stat. § 416.141).

is provided for in the listing agreement as a share of the Seller-Broker’s commission. NAR

argues that Plaintiffs “did not directly purchase anything from Defendants[.]” (Doc. #932,

p. 23.) NAR argues that Plaintiffs did not directly purchase the Buyer-Broker’s services because

the Buyer-Broker’s commission comes from the Seller-Broker’s commission and is not directly

paid by the Seller. Plaintiffs disagree, arguing that they are direct purchasers who have standing

to pursue their claims under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).

“The bright-line rule of Illinois Brick . . . means that indirect purchasers who are two or

more steps removed from the antitrust violator in a distribution chain may not sue. By contrast,

direct purchasers–that is, those who are ‘the immediate buyers from the alleged antitrust

violators’–may sue.” Apple Inc. v. Pepper, 139 S. Ct. 1514, 1521 (2019) (quoting Kansas v.

UtiliCorp United, Inc., 497 U.S. 199, 207 (1990)). “[O]nly the ‘overcharged direct purchaser,

and not others in the chain of manufacture or distribution’ can sue for antitrust damages[.]” In re

Pre-Filled Propane Tank Antitrust Litig., 893 F.2d 1047, 1058 (8th Cir. 2018) (quoting Illinois

Brick, 431 U.S. at 729)). “The direct purchaser rule serves, in part, to eliminate the

complications of apportioning overcharges between direct and indirect purchasers.” Kansas v.

UtiliCorp United, Inc., 497 U.S. 199, 208 (1990) (citations omitted).

Here, the Court finds that Plaintiffs have established a genuine dispute of material fact as

to whether they are considered direct purchasers under Illinois Brick. Despite Defendants’

contentions to the contrary, Plaintiffs have produced evidence showing that the Buyer-Broker’s

commission rates are negotiated between the Seller and the Seller-Broker, agreed to by the

Seller, and set out in the Seller’s listing agreement. See, e.g., (Doc. #932-20, p. 3; Doc. #932-21,

p. 4.) The HomeServices Defendants and Keller Williams’ expert witnesses acknowledge that

“the seller pays for the buyer’s agent and the seller’s agent” with funds from “the closing.”

(Doc. #963-73, p. 8;) (Doc. #964-118, p. 4) (stating the existence of a “convention that sellers

pay both listing brokers and buyer brokers from the proceeds of the sale of their property”).

Although Defendants argue that the Seller is not purchasing the Buyer-Broker’s services,

the record shows that the Seller must explicitly consent to the amount of the Buyer-Broker’s

commission. Defendants have not put forth any evidence of negotiations or contracts between

the Seller-Broker and the Buyer-Broker. Accordingly, the Court finds that Plaintiffs have

created a genuine dispute of material fact as to whether the Seller is the direct purchaser of the

Buyer-Broker’s commission.9

2. A Contract, Combination, or Conspiracy

Defendants argue Plaintiffs cannot present evidence meeting the first element of their

antitrust claims, or show the existence of a contract, combination, or conspiracy. Plaintiffs

disagree, and argue they have presented direct evidence of a conspiracy among the Defendants–

Section 2-G-1 itself.

In analyzing a Section 1 claim, the question is whether the contract or conspiracy “joins

together separate decisionmakers . . . . such that the agreement deprives the marketplace of

independent centers of decisionmaking.” Am. Needle, Inv. v. Nat’l Football League, 560 U.S.

183, 195–96 (2010) (cleaned up) (citations and quotations omitted). Plaintiffs need not prove a

formal agreement existed between the Defendants. 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

9 Because the Court finds a genuine dispute of material fact as to whether Plaintiffs were direct purchasers of the

Buyer-Broker’s services, the Court need not address Plaintiffs’ arguments regarding the exception to Illinois Brick

set out by Freeman v. San Diego Ass’n of Realtors, 322 F.3d 1133 (9th Cir. 2003). Regardless, even if the Seller-

Brokers are considered the direct purchasers, the Court finds that Plaintiffs have standing because there is no

realistic possibility the Seller-Brokers would sue Defendants over the alleged antitrust violation. Freeman, 322 F.3d

at 1145–46 (citing Royal Printing Co v. Kimberly-Clark Corp., 621 F.2d 323, 326 (9th Cir. 1980)).

(1984) (citation and quotations omitted). The Sherman Act is violated where participants in a

“widespread combination ha[ve] surrendered [their] freedom of action in the matter . . . and

agreed to abide by the will of the association[.]” Anderson v. Shipowners’ Ass’n of Pacific

Coast, 272 U.S. 359, 364 (1926) (citation omitted). Trade association rules “in and of

themselves [are] contracts in restraint of commerce [where] . . . they contain[] provisions

designed to stifle competition in [that] . . . field.” Associated Press v. United States, 326 U.S. 1,

11 (1945).

The Court finds that Plaintiffs have created a genuine dispute of material fact as to

whether Section 2-G-1 and the Franchisor Defendants’ adoption thereof is direct evidence of a

conspiracy.10 Here, the record creates a genuine question of material fact as to whether

Defendants adhered to a common scheme. See PLS.Com, LLC v. Nat’l Assoc. of Realtors, 32

F.4th 824, 843 (9th Cir. 2022). A reasonable jury could find that “the concerted conduct is both

plainly documented and readily available[.]” Robertson v. Sea Pines Real Estate Companies,

Inc., 679 F.3d 278, 289 (4th Cir. 2012).

Plaintiffs have produced evidence that Section 2-G-1 stifles competition among brokers

by artificially inflating commission rates. Additionally, Plaintiffs have produced evidence that

NAR adopted Section 2-G-1 and the Franchisor Defendants required their franchisees to follow

Section 2-G-1, either explicitly or through NAR’s Code of Ethics.11 See Craftsmen Limousine,

Inc. v. Ford Motor Co., 363 F.3d 761, 771 (8th Cir. 2004) (“[W]here a trade association . . . [is]

10 Further, as the Court finds that Plaintiffs have presented evidence creating a genuine dispute of material fact as to

whether Defendants conspired to restrain trade in the adoption and enforcement of Section 2-G-1, the Court need not

address NAR and the HomeServices Defendants arguments that they cannot conspire with only themselves.

11 The HomeServices Defendants and Realogy admit they require associated brokers to follow NAR’s Code of

Ethics, but argue that NAR’s Code of Ethics does not require compliance with Section 2-G-1. However, a

reasonable jury could find to the contrary. NAR’s Code of Ethics Standard of Practice 16-15 states: “In cooperative

transactions REALTORS® shall compensate cooperating REALTORS®[.]” (Doc. #963-11, p. 8.)

found to have violated antitrust laws, membership in the association will not automatically

involve all members in the violation. There must, instead, be some evidence of actual

knowledge of, and participation in, the illegal scheme[.]”). Section 2-G-1 requires Seller-

Brokers to offer Buyer-Brokers blanket unilateral offers of compensation. Although Defendants

argue that cooperative compensation is required only when it is in the client’s best interest,

Plaintiffs have produced evidence indicating that Defendants’ position is that it is always in the

client’s best interest to market a property on an MLS, subjecting it to Section 2-G-1.

Additionally, at oral arguments, the parties agreed that all transactions facilitated by the MLS are

cooperative transactions.

Further, Plaintiffs have presented evidence that Defendants provided uniform training to

Seller-Brokers to obtain 6% commission rates and to split commissions equally with Buyer-

Brokers. Because these commission offers are blanket offers and agreed to prior to listing the

house, the Buyer-Broker will receive the same amount in commission regardless of the effort

made, stifling competition.12 See Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of

Oklahoma, 468 U.S. 85, 99 (1984) (“By participating in an association which prevents member

institutions from competing against each other on the basis of price . . . , the . . . member

institutions have created a horizontal restraint–an agreement among competitors on the way in

which they will compete with one another.”). The Court finds that Plaintiffs have produced

sufficient evidence to create a genuine question of material fact as to whether Defendants’

adoption and enforcement of Section 2-G-1 is a conspiracy to restrain trade, in violation of the

Sherman Act.

12 NAR’s Code of Ethics Standard of Practice 3-2 states “After a REALTOR® has submitted an offer to purchase or

lease property, the listing broker may not attempt to unilaterally modify the offered compensation with respect to

that cooperative transaction.” (Doc. #963-11, p. 4.)

The Franchisor Defendants argue that requiring NAR and MLS membership, and

therefore requiring compliance with Section 2-G-1, cannot support a conspiracy as it was a result

of independent business judgment. However, where direct evidence is used to show the

existence of a conspiracy, a plaintiff need not present evidence to rule out independent action.

See Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028, 1037 (8th Cir.

2000) (“However, where there is an independent business justification for the defendant’s

behavior, no inference of conspiracy can be drawn.”); see also Anderson, 272 U.S. at 363 (“A

restraint of interstate commerce cannot be justified by the fact that the object of the participants

in the combination was to benefit themselves in a way which might have been unobjectionable,

in the absence of such restraint.”).

Similarly, the Franchisor Defendants argue that Plaintiffs cannot show a conspiracy

because they cannot be held liable for the conduct of their associated brokers, who negotiate and

set commission rates.13 However, the Franchisor Defendants misstate Plaintiffs’ antitrust claims.

Plaintiffs allege that the Franchisor Defendants restrain trade by enforcing policies and practices

that artificially inflate commission rates. See Nobody in Particular Presents, Inc. v. Clear

13 The HomeServices Defendants argue that HSoA cannot be liable for the actions of BHH. (Doc. #986, p. 9.) The

Court finds that Plaintiffs have presented sufficient evidence to create a genuine dispute of material fact as to

whether all of the HomeServices Defendants engaged in the conspiracy discussed herein such that HSoA’s liability

is not derivative of BHH.

However, for the reasons discussed below, the Court also finds that Plaintiffs have presented sufficient evidence to

create a genuine dispute of material fact as to whether the HomeServices Defendants are independently managed

and have consolidated decision-making power, or entities capable of conspiring under § 1 of the Sherman Act. See

American Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 196–97 (2010) (holding the determinative “question

is whether the agreement joins together ‘independent centers of decisionmaking’” and finding entities were not

capable of conspiring for § 1 purposes where they were each “a substantial, independently owned, and

independently managed business”). For example, Robert Moline served as CEO of HSoA at some point from 2008

to 2017, and “[s]omewhere towards the end” was “given the title of CEO of HomeServices Residential Real Estate

Brokerage or whatever, which is a nonexistent entity;” however, these titles “didn’t matter” because, regardless of

his position, he “kept doing the same things [he] was doing before.” (Doc. #936-46, p. 3.) When asked if HSoA’s

subsidiaries and franchisees competed with one another, Moline responded, “[H]ow do you compete with yourself?”

(Doc. #963-46, p. 7.)

Channel Commc’ns, Inc., 311 F. Supp. 2d 1048, 1069 (D. Colo. 2004) (citing Copperweld Corp

v. Independence Tube Corp., 467 U.S. 752, 773–74 (1984) (“When the parent controls, directs,

or encourages the subsidiary’s anticompetitive conduct, the parent engages in sufficient

independent conduct to be held directly liable as a single enterprise with the subsidiary under the

Sherman Act.”)). As discussed above, Plaintiffs have presented evidence creating a genuine

dispute of material fact as to whether Defendants encouraged or directed compliance with

Section 2-G-1, resulting in the artificial inflation of commission rates. The effects of the

brokers’ actions, or what commission rates the associated brokers actually used, do not bear on

whether a conspiracy existed. See Associated Press, 326 U.S. at 12 (citation and quotations

omitted) (“An agreement or combination to follow a course of conduct which will necessarily

restrain . . . trade or commerce may violate the Sherman Act, whether it be wholly nascent or

abortive on one hand, or successful on the other.”).

Finally, the Franchisor Defendants argue that they could not have conspired because they

did not exist as entities when Section 2-G-1 came into effect. This is immaterial:

It is elementary that an unlawful conspiracy may be and is often formed without

simultaneous action or agreement on the part of the conspirators. . . . Acceptance

by competitors, without previous agreement, of an invitation to participate in a

plan, the necessary consequence of which, if arrived out, is restraint of interstate

commerce, is sufficient to establish an unlawful conspiracy under the Sherman

Act.

Interstate Cir., 306 U.S. at 227. Accordingly, the Court finds that Plaintiff have created a

genuine dispute of material fact precluding summary judgment.14

14 As the Court finds Plaintiffs have created a genuine dispute of material fact as to whether Plaintiffs have produced

direct evidence of a conspiracy among the Defendants, the Court need not address Defendants’ arguments relating to

circumstantial evidence of a conspiracy. See Robertson, 679 F.3d at 289–90. Regardless, the Court finds that

Plaintiffs have produced sufficient circumstantial evidence of a conspiracy among the Defendants such that the

outcome would be the same.

3. Unreasonable Restraint of Trade

The parties dispute whether Section 2-G-1 is an unreasonable restraint of trade. As a

threshold matter, the Court must determine the applicable standard to analyze Section 2-G-1.

“Whether an agreement unreasonably restraints trade is determined under one of two approaches:

the per se standard or a standard that examines all of the circumstances, the so-called rule of

reason test.” Wholesale Alliance, 366 F. Supp. 3d at 1076 (citing Am. Express Co., 138 S. Ct. at

2283; Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1058 (8th Cir. 2000)).

Defendants contend that the rule of reason test, which involves a study of the relevant market

and effects of the challenged restraint, is applicable here. Plaintiffs argue the per se standard is

appropriate.

“Per se liability is reserved for only those agreements that are ‘so plainly anticompetitive

that no elaborate study of the industry is needed to establish their illegality.’” Texaco, Inc. v.

Dagher, 547 U.S. 1, 5 (2006) (quoting Nat’l Soc. of Professional Engineers v. United States, 435

U.S. 679, 692 (1978)). “Price-fixing agreements between two or more competitors, otherwise

known as horizontal price-fixing agreements, fall into the category of arrangements that are per

se unlawful.” Id. (citation omitted). “That price-fixing includes more than the mere

establishment of uniform prices is clearly evident[.]” United States v. Socony-Vacuum Oil Co.,

310 U.S. 150, 222 (1940)

Defendants argue the Court should not apply the per se rule because Section 2-G-1 does

not explicitly set commission rates. Here, however, the fact that Section 2-G-1 does not

explicitly set out acceptable commission rates is not dispositive. “Under the Sherman Act a

combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or

stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” Socony,

310 U.S. at 223 (emphasis added). Plaintiffs have produced evidence that Defendants have

stabilized the price of residential real estate brokers’ services, as reflected through commission

rates. For example, Plaintiffs have produced evidence that Defendants train associated brokers

to set commission rates at 6%, to split commission equally among Buyer-Brokers and Seller-

Brokers, and to never lower commissions. See, e.g., (Doc. #964-33, p. 4) (discussing a Re/Max

training document which says: “Once you start cutting commissions, you can never stop. . . .

Charge everyone the same and let them know it[.]”).

In addition to training, Plaintiffs have presented expert testimony showing that Section

2-G-1 had the effect of stabilizing commission rates. (Doc. #922-2, pp. 86–95) (noting that

upwards of 90% of transactions on the Subject MLS offer buyer agent commissions of exactly

3% during the class period, with the exception of the MARIS MLS consistently offering 2.7%).

Plaintiffs have also produced evidence that Section 2-G-1 creates a system that rewards all

Buyer-Brokers similarly, despite their skill as a broker or the amount of effort expended in

procuring the Buyer. Arizona v. Maricopa Cty. Med. Soc., 457 U.S. 332, 348 (1982) (“In this

case the rule is violated by a price restraint that tends to provide the same economic reward to all

practitioners regardless of their skill, their experience, their training, or their willingness to

employ innovative and difficult procedures in individual cases.”). Although it is true that a

nominal commission of $1 would satisfy Section 2-G-1 and Defendants agree such nominal

commission is mandated, Plaintiffs have produced evidence that no transaction within the

Subject MLS took place using a nominal commission. (Doc. #963-54, p. 6.) Therefore,

Defendants’ argument is rejected.

Defendants also argue that application of the per se rule is inappropriate under Broadcast

Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979). Defendants provide little

explanation for why Broadcast Music, which dealt with blanket licensing fees in the music

industry, is applicable here. In Broadcast Music, the Supreme Court found the blanket license

“developed . . . out of the practical situation in the marketplace” where “users want unplanned,

rapid, and indemnified access to” music and “owners want a reliable method of collecting for the

use of their copyrights.” Id. at 20. More importantly, the blanket license scheme in Broadcast

Music was developed in concert with a consent decree imposed by the Department of Justice,

among others, and the Supreme Court found this was a large factor in declining to apply the per

se rule. Id. at 13 (“[I]t cannot be ignored that the Federal Executive and Judiciary have carefully

scrutinized . . . the challenged conduct . . . and, by the terms of the decree, stand ready to provide

further consideration, supervision, and perhaps invalidation of asserted anticompetitive

practices.”).

The rationale used to apply the rule of reason in Broadcast Music is not present here.

The residential real estate market involves slower and more complex transactions than the music

licensing industry. The transactions at issue here involve only two parties and only one product,

or home, per transaction. Although an MLS can assist a transaction by making listings easily

available to brokers that are members, the actual sale of the home takes place through a

negotiated and written agreement. In contrast, the market in Broadcast Music involved quick

transactions licensing one product to multiple consumers. And, notably, Section 2-G-1 has not

been continually scrutinized by any government entity for antitrust implications, unlike the

alleged restraint at issue in Broadcast Music. Accordingly, Broadcast Music is factually

distinguishable and does not preclude the application of the per se rule.

To the contrary, the Court agrees with Plaintiffs and finds that the per se rule is

applicable here. As discussed above, Plaintiffs have produced evidence, creating a genuine

dispute of material fact, that Defendants implemented or enforced Section 2-G-1 with the

purpose and effect of inflating or stabilizing broker commission rates. The record creates a

genuine material fact as to whether Defendants have engaged in a horizontal price-fixing

scheme, exactly the situation where applying the per se rule is appropriate. Texaco, 547 U.S. at

5. For this reason, the Court finds the per se rule is applicable here, and Plaintiffs have met their

“burden of proving the unreasonableness of the restraint merely by proving the existence of

substance of the restraint itself.” Craftsmen Limousine, Inc. v. Ford Motor Co., 491 F.3d 380,

387 (8th Cir. 2007).15

4. Antitrust Injury

Defendants argue Plaintiffs cannot show an antitrust injury because (1) Plaintiffs were

not harmed by Section 2-G-1; and (2) Plaintiffs have failed to specify any amount of damages.

The parties’ arguments are addressed separately below.

To prevail, Plaintiffs must present facts indicating they suffered an ‘antitrust injury’ as a

result of the alleged conduct of the defendants[.]” In re Canadian Import Antitrust Litig., 470

F.3d 785, 791 (8th Cir. 2006). “An antitrust plaintiff must show that a defendant’s

anticompetitive act was a material and but-for cause of plaintiff’s injury, although not necessarily

the sole cause.” In re Actos End-Payor Antitrust Litig., 848 F.3d 89, 97 (2nd Cir. 2017) (citation

and quotations omitted). “[A] plaintiff need not exhaust all possible alternative sources of injury

in fulfilling his burden of proving compensable injury.” Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 114 n.9 (1969).

15 As the Court finds that the per se standard is applicable, the Court need not address the Parties’ arguments

regarding the rule of reason and whether the relevant market is a two-sided platform, as discussed in Ohio v.

American Express Co., 138 S. Ct. 2274 (2018). However, even if the rule of reason was applicable, the Court finds

that Plaintiffs have produced evidence about the relevant market and effect of Section 2-G-1 that creates a genuine

dispute of material fact as to whether Section 2-G-1 is an unreasonable restraint of trade.

First, Defendants argue that Section 2-G-1 has not harmed Plaintiffs. Plaintiffs disagree,

arguing that, but for Section 2-G-1, they would not have paid any commission to a Buyer-

Broker. “At base, an antitrust plaintiff’s damages should reflect the difference between its

performance in a hypothetical market free of all antitrust violations and its actual performance in

the market infected by the anticompetitive conduct.” Nat’l Farmers’ Org., Inc. v. Assoc. Milk

Producers, Inc., 850 F.2d 1286, 1306 (8th Cir. 1988) (citing Bigelow v. RKO Radio Pictures,

327 U.S. 251, 264 (1946)).

The Court finds that Plaintiffs have produced evidence that Section 2-G-1 caused them

harm. Plaintiffs’ expert, Dr. Craig Schulman, opines that, in a market without Section 2-G-1,

Sellers would not pay Buyer-Brokers’ commissions.16 The Court does not find Defendants’

argument that Plaintiffs passed on any costs associated with artificially inflated home prices to

Buyers persuasive. The Court agrees with Plaintiffs in that:

Even if real estate prices were lower in the but-for world, that would apply both

when a house is bought and when it’s sold. A seller might get a 2% to 3% lower

sales price, but that same seller also would have paid 2% to 3% less when they

bought the house. For example, imagine someone buys a house for $100,000.00,

holds it for five years (in which time it appreciates 10%), and then sells it for

$110,000.00. After paying a 6% commission (3% to the buyer broker), the seller

is left with sales proceeds of $103,400.00, and a profit of $3,400. Now imagine

that same transaction in the but-for world with 3% lower prices. The house is now

bought for $97,000.00, appreciates 10% in five years, and sells for $106,700.00.

The seller now pays a 3% commission (0% to the buyer broker), leaving sales

proceeds of $103,499.00 and a profit of $6,499.00.

(Doc. #956, pp. 36–37.)

Defendants argue that Dr. Schulman’s opinion is not dispositive because some MLS in

the United States do not require compliance with Section 2-G-1 but still have similar commission

rates. However, Plaintiffs have produced evidence these markets are infected by anticompetitive

16 In a companion Order, the Court denies Defendants’ Daubert motion to exclude Dr. Schulman from testifying at

trial.

conduct, in that those MLS and applicable state laws encourage cooperative compensation

between brokers. See, e.g., Wash. Rev. Code Ann. § 18.86.050; see also (Doc. #966-61.)

Therefore, the Court finds that Plaintiffs have produced evidence creating a genuine issue of

material fact as to whether they have been harmed by Section 2-G-1.

Second, Defendants argue that Plaintiffs have failed to demonstrate what amount of

injury is attributable to their conduct. However, the Court disagrees that Plaintiffs are required

to identify a specific dollar amount. “‘Paying an overcharge caused by the alleged

anticompetitive conduct on a single purchase suffices to show–as a legal and factual matter–

impact or fact of damage.’” In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015) (quoting

Davis & Cramer, Antitrust, Class Certification, and the Politics of Procedure, 17 Geo. Mason

L. Rev. 969, 984–85 (2010) (internal quotations omitted)). Here, Plaintiffs have produced

sufficient evidence to create a genuine dispute of material fact as to whether they were

overcharged as a result of Section 2-G-1. Therefore, Defendants’ argument is rejected.

B. Count II, MMPA

Defendants argue they are entitled to summary judgment on Count II, alleging a violation

of the MMPA. In particular, Defendants argue (1) the alleged harm was not in connection with

Defendants’ conduct; (2) Plaintiffs have not shown they suffered an ascertainable loss; and (3)

Section 2-G-1 is not an unfair practice.17 Plaintiffs disagree. The parties’ arguments are

addressed separately below.

“To establish a claim under the MMPA, a plaintiff must show that she (1) leased or

purchased a product or service from defendant; (2) primarily for personal, family, or household

purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of an act

17 Defendants argue that Count II is derivative of and dependent on Plaintiffs’ antitrust claims. The Court rejects

this argument for the same reason it declines to grant summary judgment, as discussed above.

declared unlawful by [Mo. Rev. Stat.] § 407.020[.]” Toben v. Bridgestone Retail Ops. LLC, 751

F.3d 888, 897 (8th Cir. 2014). The MMPA prohibits “[t]he act, use or employment by any

person of any . . . unfair practice . . . in connection with the sale or advertisement of any

merchandise in trade or commerce . . . in or from the state of Missouri[.]” Mo. Rev. Stat.

§ 406.020.

1. “In Connection With”

Defendants argue that Count II fails because Plaintiffs’ alleged harm was not “in

connection with” Defendants’ conduct because Defendants did not enter into any transactions

Plaintiffs. Plaintiffs disagree, arguing that they have shown direct causation between the

enforcement of Section 2-G-1 and “their payment of inflated real estate commissions[.]”

(Doc. #956, p. 34.)

“Consumers need not have ‘a direct contractual relationship’ to ‘maintain a suit under the

MMPA against a party with a connection to the merchandise before a buyer enters the

transaction.’” Schulte v. Conopco, Inc., 997 F.3d 823, 826 (8th Cir. 2021) (quoting Conway v.

CitiMortgage, Inc., 438 S.W.3d 410, 416 (Mo. banc 2014)). There must be “a relationship

between the sale of merchandise and the alleged unlawful action.” Conway, 438 S.W.3d at 414.

“[T]he unlawful action may occur at any time before, during or after the sale and by any person.”

Id.

As discussed at length above, Plaintiffs have shown a connection between their home

purchases and Section 2-G-1. Further, Plaintiffs have shown that Defendants continue to enforce

Section 2-G-1, requiring Sellers to compensate Buyer-Brokers from home sales’ proceeds.

Defendants’ argument that they cannot be held vicariously liable for the actions of their

associated brokerages and franchisors is not relevant because Plaintiffs are challenging

Defendants’ own actions here. For the reasons discussed above and for the reasons set out in

Plaintiffs’ brief, the Court finds that Plaintiffs have shown evidence sufficient to survive

summary judgment that Defendants’ enforcement of Section 2-G-1 is in connection with

Plaintiffs’ home sales transactions.

2. Ascertainable Loss

Defendants argue that Count II fails because Plaintiffs have not shown they suffered an

ascertainable loss. Plaintiffs disagree, arguing that “[e]very dollar that Plaintiffs paid to buyer’s

brokers and agents is a dollar of loss.” (Doc. #965, p. 36.)

“Under Missouri law, the plaintiffs must prove that they suffered pecuniary loss in order

to prevail on their MMPA claim[.]” Grawitch v. Charter Commc’ns, Inc., 750 F.3d 956, 960

(8th Cir. 2014) (citing Ward v. W. Cnty. Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013)).

Where a plaintiff asserting an MMPA claim alleges a product “was worth less than the product

as represented,” the “benefit-of-the-bargain rule” is the appropriate measure of damages. Plubell

v. Merck Co., Inc., 289 S.W.3d 707, 715 (Mo. App. W.D. 2009); see Schoenlein v. Routt Homes,

Inc., 260 S.W.3d 852, 855 (Mo. App. E.D. 2008) (holding that, when using the benefit-of-the-

bargain rule, the plaintiff must show evidence of the bargained-for value and the actual value of

the good). However, this measure of damages is not appropriate where the buyer alleges “the

misrepresented good was worthless.” Kerr, 439 S.W.3d at 814. Further, “[i]n fraud cases where

the benefit of the bargain rule is inadequate, other measures of damages may be used.” Dierkes

v. Blue Cross & Blue Shield of Mo., 991 S.W.2d 662, 669 (Mo. banc 1999) (citation omitted).

Defendants argue that Plaintiffs have failed to show an ascertainable loss. Plaintiffs

argue that, because they assert they received nothing of value from the Buyer-Broker, they are

not required to show an ascertainable loss. The Court agrees with Plaintiffs. As discussed

above, Plaintiffs have presented evidence that, but-for Section 2-G-1, they would not have paid

any commission to the Buyer-Broker. Plaintiffs’ theory of recovery does not rely on allegations

that Defendants misrepresented anything or that they received less than what they are promised.

Consequently, Defendants’ argument is rejected.

Additionally, Defendants argue that Plaintiffs suffered no ascertainable loss because the

cost of the Buyer-Brokers commission is passed onto the Buyer as part of the increased home

price. As discussed above, the Court rejects this argument. Because Plaintiffs have shown a

genuine dispute of material fact, summary judgment is not warranted on this issue.

3. Unfair Practice

Defendants argue that Count II fails because Plaintiffs have not shown the enforcement

of Section 2-G-1 is unfair or unlawful within the meaning of the MMPA. Plaintiffs disagree,

arguing that the question of whether Section 2-G-1 is unfair is more appropriately left to a jury.

The MMPA does not describe an unfair practice:

Sec. 407.020 does not define deceptive practices; it simply declares unfair or

deceptive practices unlawful. This was done to give broad scope to the meaning

of the statute and to prevent evasion because of overly meticulous definitions.

This leaves to the court in each particular instance the determination whether fair

dealing has been violated. It is the defendant’s conduct, not his intent, which

determines whether a violation has occurred. It is not necessary in order to

establish ‘unlawful practice’ to prove the elements of common law fraud.

Huch v. Charter Commc’ns, Inc., 290 S.W.3d 721, 724 (Mo. banc 2009) (citation and quotations

omitted). Accordingly, “whether a practice is unfair can be a factual issue.” Schulte, 997 F.3d at

826. Missouri regulations interpret an “unfair practice” as a practice that “[o]ffends any public

policy as it has been established by the Constitution, statutes or common law of this state, or by

the Federal Trade Commission, or its interpretative decisions” or “[i]s unethical, oppressive or

unscrupulous.” 15 CSR 60-8.020(1)(A).

As discussed above, the Court finds that Plaintiff has presented genuine disputes of

material fact as to whether Section 2-G-1 and Defendants’ actions in enforcing a scheme to

stabilize commission rates violates the Sherman Act and Missouri’s Antitrust Law. The Court

need not repeat its findings here. Further, as there is genuine dispute of material fact as to

whether Defendants’ conduct violated federal and state law, it follows that there is a genuine

dispute of material fact as to whether Defendants engaged in unfair practices that offend public

policy. For those reasons, Defendants’ motions for summary judgment are denied.

IV. CONCLUSION

Accordingly, it is ORDERED that Defendants’ motions for summary judgment

(Doc. #917), (Doc. #925), (Doc. #927), (Doc. #928), (Doc. #930) are DENIED.

IT IS SO ORDERED.

/s/ Stephen R. Bough

STEPHEN R. BOUGH, JUDGE

DATE: December 16, 2022 UNITED STATES DISTRICT COURT