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 pla