IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

QJ TEAM, LLC, AND FIVE POINTS 

HOLDINGS, LLC, individually, and on 

behalf of all others similarly situated, 

 Plaintiffs, 

v. 

TEXAS ASSOCIATION OF REALTORS, 

INC., et al.,

 Defendants.

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Case No. 4:23-cv-01013-SDJ

(Consolidated with 4:23-cv-01104-SDJ)

__________________________________________

DEFENDANT J.P. PICCININI REAL ESTATE SERVICES, LLC, MEMORANDUM IN

SUPPORT OF ITS MOTION TO DISMISS CONSOLIDATED AMENDED COMPLAINT

PURSUANT TO FED. R. CIV. P. RULE 12(b)(6)

___________________________________________

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TABLE OF CONTENTS

Page

INTRODUCTION ........................................................................................................................ 1

FACTUAL ALLEGATIONS ....................................................................................................... 2

ARGUMENT................................................................................................................................ 5

I. PLAINTIFFS’ UNSUPPORTED ALLEGATIONS MERELY CREATE

A POSSIBILITY OF A CLAIM INSUFFICIENT TO WITHSTAND A

MOTION TO DISMISS ....................................................................................... 5

II. PLAINTIFFS DO NOT ALLEGE AN ACTIONABLE SECTION 1

CONSPIRACY ..................................................................................................... 6

A. The Consolidated Amended Complaint Fails to Allege Any

Role in, Joining of or Furtherance of the Conspiracy............................... 7

B. Membership in a Trade Association and Compliance with its

Rules Fails to Allege a Section 1 Conspiracy...........................................10

C. The Consolidated Amended Complaint Does not Allege a

Horizontal Conspiracy among Real Estate Brokers..................................12

D. A Plaintiff Cannot Allege a Conspiracy to Restrain Trade by

Fixing Prices Cannot without Allegations of a Fixed Price......................14

III. THE ALLEGATIONS DO NOT STATE FACTS TO SUPPORT A PER

SE NOR A RULE OF REASON ANTITRUST VIOLATION............................15

A. The Allegations Do Not Support a Conclusion of a per se Violation.......15

B. A Defined and Plausible Geographic and Product Market must be

Alleged to Support a Rule-of-Reason Claim and Plaintiffs do not

Make Such Allegations.............................................................................18

CONCLUSION.............................................................................................................................20

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TABLE OF AUTHORITIES

Page

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 5

Bailey Lumber & Supply Co. v. Ga.-Pac. Corp., No. 08-cv-1394, 2009 WL 2872307 

(S.D. Miss. Aug. 10, 2009)......................................................................................................... 9

Bank of Am., N.A. v. Knight, 725 F.3d 815 (7th Cir. 2013)............................................................ 7

Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340 (8th Cir. 1995)................................................. 18

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................................... 6, 8

Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028 (8th Cir. 2000)........ 13

Concord Assocs., L.P. v. Ent. Properties Tr., 817 F.3d 46 (2d Cir. 2016)................................... 18

Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284 (5th Cir. 1988) ....................... 10

Craftsmen Limousine, Inc. v. Ford Motor Co., 363 F.3d 761 (8th Cir. 2004) ....................... 15, 16

Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248 

(11th Cir. 2015)................................................................................................................... 19, 20

Farm Credit Servs. v. Am. State Bank, 339 F.3d 764 (8th Cir. 2003) ............................................ 6

Fayer v. Vaughn, 649 F.3d 1061 (9th Cir. 2011)........................................................................ 5, 6

Gonzales v. Key, 577 F.3d 600 (5th Cir. 2009)............................................................................... 6

Grace v. Re/Max Holdings, No. 23-cv-06352, 2024 WL 2761188 

 (N.D. Cal. May 29, 2024) ................................................................................................... 14, 15

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).......................................................................... 2

In re Crop Inputs Antitrust Litig., ___ F. Supp.3d ___, 2004 WL 4188654

(E.D. Mo. Sept. 13, 2024)........................................................................................................... 7

In re EpiPen Direct Purchaser Litig., 2022 WL 1017770 (D. Minn. Apr. 5, 2022).................... 13

In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300 (3d Cir. 2010) ....................... 11, 12

In re Jan. 2021 Short Squeeze Trading Litig., 105 F.4th 1346 (11th Cir. 2024).......................... 16

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In re Online Travel Co. Hotel Booking Antitrust Litig., 997 F.Supp.2d 526 

(N.D. Tex. 2014)......................................................................................................................... 8

In re Processed Egg Prods. Antitrust Litig., 2019 WL 5656101 

(E.D. Pa. Oct. 31, 2019)...................................................................................................... 13, 14

Insulate SB, 797 F.3d at 546 ......................................................................................................... 16

Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327 (11th Cir. 2010)............................................ 18

Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) ........................................................ 11

Kentucky Speedway, LLC v. Nat'l Ass'n of Stock Car Auto Racing, Inc., 588 F.3d 908 

(6th Cir. 2009)........................................................................................................................... 20

Kotteakos v. United States, 328 U.S. 750 (1946).......................................................................... 13

L.A. Draper & Son v. Wheelabrator–Frye, Inc., 735 F.2d 414 (11th Cir. 1984)......................... 19

Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007)............................... 16

Litovich v. Bank of America Corp., 568 F. Supp. 3d 398 (S.D.N.Y 2021)..................................... 8

New Orleans Ass’n of Cemetery Tour Guides and Cos. v. New Orleans Archdiocesan 

Cemeteries, 56 F.4th 1046 (5th Cir. 2023)................................................................................ 17

O’Riordan v. Long Island Bd. of Realtors, Inc., 707 F. Supp. 111 (E.D.N.Y. 1988)................... 17

Ohio v. Am. Express Co., 585 U.S. 529 (2018) ............................................................................ 16

Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995 (6th Cir. 1999) ........................................... 17

Realcomp II, Ltd. v. FTC, 635 F.3d 815 (6th Cir. 2011) .............................................................. 17

Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312 (7th Cir. 2006) ............................................... 17

Robertson v. Sea Pines Real Estate Cos., Inc., 679 F.3d 278 (4th Cir. 2012)........................... 8, 17

SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412 (4th Cir. 2015) ...................................... 12

Texaco Inc. v. Dagher, 547 U.S. 1 (2006).................................................................................... 15

Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566 (11th Cir. 1991)......................................... 17

U.S. v. Multi-List, Inc., 629 F.2d 1351 (5th Cir. 1980)................................................................... 8

United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370 (5th Cir. 2004)............. 14

United States v. Realty Multi-List, Inc., 629 F.2d 1351 (5th Cir. 1980)....................................... 17

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White & White, Inc. v. Am. Hosp. Supply Corp., 723 F.2d 495 (6th Cir.1983)...................... 19, 20

Wilk v. Am. Med. Ass’n, 895 F.2d 352 (7th Cir. 1990)................................................................. 10

Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955

(6th Cir. 2004)..................................................................................................................... 18, 22

Other Authorities

ABA Antitrust Law Section, Antitrust Law Developments, p. 53 (9th Ed. 2022)....................... 15

Sherman Act........................................................................................................................ 1, 10, 13

Rules

FED. R. CIV. P. 12(b)(6)......................................................................................................... passim

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Defendant J.P. Piccinini Real Estate Services, LLC a/k/a JPAR Real Estate

(“JPAR”) submits this memorandum in support of its FED. R. CIV. P. 12(b)(6)

Motion to Dismiss Plaintiff’s Consolidated Amended Complaint. 

INTRODUCTION

The Court should dismiss the Consolidated Amended Complaint (ECF No. 

199) for the following reasons: 

Plaintiffs do not allege how JPAR joined the conspiracy that existed before it 

came into existence. Without specific allegations showing how JPAR joined and 

furthered the conspiracy, the Consolidated Amended Complaint fails to allege a 

claim.

The Consolidated Amended Complaint fails to allege an actionable 

conspiracy between JPAR, on the one hand, and NAR, the Texas Association of 

REALTORS® and the local associations on JPAR’s markets. Several circuits have 

held that an allegation that members of a trade association have followed its rules is 

insufficient to plead a conspiracy in violation of Section 1 of the Sherman Act.

In order to survive this motion, the Consolidated Amended Complaint must 

allege facts showing JPAR conspired with Plaintiffs’ listing brokers. The listing 

brokers allegedly charged Plaintiffs an inflated commission, which the listing 

brokers then split with buyer’s brokers. Plaintiffs do not plead facts sufficient to 

show that JPAR and Plaintiffs’ selling brokers communicated, much less that they 

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agreed to join each other in a conspiracy to overcharge Plaintiffs. Nor does the 

Consolidated Amended Complaint adequately allege a horizontal conspiracy 

between JPAR and any other selling broker. 

Plaintiffs’ claim that JPAR committed a per se Section 1 violation should be 

dismissed. A court may not find per se violation when the courts lack considerable 

experience evaluating the alleged restrictions. Moreover, as noted immediately 

above, Plaintiffs have not alleged a cognizable horizontal conspiracy, which is the 

sine qua non for per se treatment.

The Consolidated Amended Complaint fails to define viable geographic or

product markets, which mandates dismissal of Plaintiffs’ Section 1 claim under the 

rule-of-reason. 

FACTUAL ALLEGATIONS

The Consolidated Amended Complaint makes the following allegations, taken 

as true for purposes of this motion only. 

All Plaintiffs paid a commission to their listing brokers. Consol. Amend. 

Compl. ¶¶ 96-98 (ECF No, 199). Plaintiffs’ listing brokers then disbursed a portion 

of the commission received from the seller to the buyer’s broker[s] upon the 

completion of the sale. Id. The Consolidated Amended Complaint does not name 

or identify the buyer’s brokers who allegedly received an inflated commission.

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JPAR entered the business of real estate brokerage services in 2011, fifteen 

years after the adoption of the offer of compensation rule. Consol. Am. Comp. ¶ 69. 

Plaintiffs allege nothing about JPAR encouraging the rule or being involved in MLS 

or Association activity related to the rule. Plaintiffs rely on JPAR obeying the rule 

as the basis for their claim. All of JPAR’s alleged involvement with MLS and local 

Associations comes from agents currently sitting on boards, but does not allege any 

action to implement or enforce the rule. Consol. Amend. Compl. ¶ 139.

The Plaintiffs allege that a rule adopted in 1996 by a trade association 

named the National Association of Realtors (“NAR”) made them pay a 

commission to the buyer broker. Id. ¶¶ 103–04, 107. The Complaint repeatedly

refers to the Mandatory Offer of Compensation Rule (the “Compensation

Rule”), but never provides the text of the rule. The Plaintiffs allege that NAR

included the Compensation Rule in its 2019 Handbook on Multiple Listing

Policy. Id. ¶ 104. The plain language of the Compensation Rule does not

mandate that listing brokers offer buyer agents a specific commission. The

Compensation Rule states:

In filing property with the multiple listing services, 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 offered by

the listing broker to the other MLS participants. Handbook at 34.

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The Handbook also states:

Multiple listing services shall not publish listings that do not include

an offer of compensation expressed as a percentage of the gross selling

price or as a definite dollar amount, nor shall they include general 

invitations by listing brokers to other participants to discuss terms and 

conditions of possible cooperative relationships.

Id. at 35.

The plain text of the Compensation Rule contemplates that a listing broker

will offer to pay some level of commission to the buyer broker, but it does not

dictate an amount, leaving the amount up to market participants. The Complaint

confirms that the Compensation Rule does not require that a seller offer a buyer

agent any particular level of commission. The Plaintiffs quote a Texas

Association of Realtors (“TAR”) rule that requires listing brokers to make an

unspecified offer of compensation to buyer’s brokers and disclose such offers. Id.

¶ 122. The Plaintiffs also rely on a portion of a TAR form that discloses to the

seller if the listing broker agrees to pay another broker to show the property to

buyers, and the form has blanks for the listing broker to complete, rather than

any mandatory commission level or percentage. Id. ¶ 126. Finally, the 

Plaintiffs concede that prior to the Missouri verdict in late 2023, market

participants expressly “allowed offers of compensation [of] $.01 or more” and

merely required that listing brokers offer “some amount” to buyer brokers. Id. ¶¶

127–28.

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Plaintiffs identify JPAR in Paragraph 69 of the Consolidated Amended 

Complaint. In the same paragraph, plaintiffs allege sales volume, number of agents, 

and REALTOR® association memberships of JPAR. Those are the only specific 

allegations regarding JPAR.

ARGUMENT

I. PLAINTIFFS’ UNSUPPORTED ALLEGATIONS MERELY CREATE 

A POSSIBILITY OF A CLAIM INSUFFICIENT TO WITHSTAND A 

MOTION TO DISMISS.

To survive a Rule 12(b)(6) motion to dismiss, a complaint must state a 

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (holding 

that the requirement to plead sufficient factual support of claims “asks for more than 

a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads 

facts that are merely consistent with a defendant’s liability, it stops short of the line 

between possibility and plausibility of entitlement to relief.”) (citations and internal 

quotation marks omitted.) “A pleading that offers ‘labels and conclusions’ or ‘a 

formulaic recitation of the elements of a cause of action will not do.’ Nor does a 

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Id. at 678 (internal citations omitted). 

A court does not need to “assume the truth of legal conclusions merely 

because they are cast in the form of factual allegations.” Id. at 678; Fayer v. Vaughn, 

649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (“[C]onclusory allegations of law 

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and unwarranted inferences are insufficient to defeat a motion to dismiss.”)

(quotation marks omitted); Farm Credit Servs. v. Am. State Bank, 339 F.3d 764, 767 

(8th Cir. 2003) (holding that a court is “free to ignore legal conclusions, unsupported

conclusions, unwarranted inferences and sweeping legal conclusions cast in the form 

of factual allegations.”) (Internal citation omitted).

Factual allegations must include enough specificity to allow the court to infer 

facts supporting a claim. “It follows that ‘where the well-pleaded facts do not permit 

the court to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Gonzales 

v. Key, 577 F.3d 600, 603 (5thCir. 2009). As outlined in the introduction and more 

fully stated below, the allegations of the Consolidated Amended Complaint fail to 

reach the required standard.

II. PLAINTIFFS DO NOT ALLEGE AN ACTIONABLE SECTION 1 

CONSPIRACY.

For multiple reasons, the Amended Complaint does not adequately plead that 

JPAR was part of an illegal conspiracy. See generally Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 591 n. 10 (2007) (upholding district court’s Rule 12(b)(6) dismissal 

because “a defendant seeking to respond to Plaintiffs' conclusory allegations in the 

§ 1 context would have little idea where to begin.”) (internal citations omitted). 

Twombly makes clear that at the pleading stage in an antitrust case, each defendant 

is entitled to know how it is alleged to have conspired, with whom, and for what 

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purpose. In re Crop Inputs Antitrust Litig., ___ F.Supp.3d ___, 2024 WL 4188654 

(E.D. Mo. Sept. 13, 2024). “Each defendant is entitled to know what he or she did 

that is asserted to be wrongful,” from the allegations of the complaint and a 

“complaint based on a theory of collective responsibility must be dismissed.” Bank 

of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). In other words, there must 

be facts sufficient to infer an actual combination with others to achieve the illegal 

goal.

A. The Consolidated Amended Complaint Fails to Allege Any Role in, 

Joining of or Furtherance of the Conspiracy.

The conspiracy allegations of the Consolidated Amended Complaint contain 

nothing specific as to JPAR. Essentially Plaintiffs allege that the brokers belonged 

to the same trade group and used multiple listing services. According to Plaintiffs, 

these two actions substantiate they acted together to artificially inflate real estate 

commissions. JPAR entered the business of real estate brokerage services in 2011, 

fifteen years after the adoption of the offer of compensation rule. Consol. Am. 

Comp. ¶ 69. The current owner of JPAR, Cairn Real Estate Holdings, LLC (“Cairn”) 

acquired JPAR 25 years after adoption of the rule. The Consolidated Amended 

Complaint alleges conspiracy to adopt an MLS rule going back to 1995-96. 

Plaintiffs allege nothing about JPAR encouraging the rule or being involved in MLS 

or Association activity related to the rule.

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Merely alleging parallel business conduct exists, even if done consistently, 

without pleading a setting for a meeting of the minds to agree, cannot pass a Rule 

12(b)(6) challenge. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). If 

membership in a national trade organization and participation in a facility of 

commerce necessary to create a market (the MLS) are enough “factual 

enhancement” to make a plausible suggestion of conspiracy, then Twombly means 

nothing. Compare the allegations in the Consolidated Amended Complaint 

regarding JPAR to those in Robertson v. Sea Pines Real Estate Cos., Inc., 679 F.3d 

278, 290 (4th Cir. 2012).

In that case, plaintiffs alleged the brokerage defendant exercised control over 

an MLS board and enacted rules to create barriers to new brokers joining the MLS. 

In this case, JPAR simply joined the MLS. The MLS rules complained of had been 

in effect for years. Membership in an MLS is necessary to compete in a residential 

real estate market. Id.; U.S. v. Multi-List, Inc., 629 F.2d 1351, 1367-68 (5th Cir. 

1980) (MLS database effectively responds to real estate market imperfections and 

membership is necessary to effectively compete). JPAR joined various MLS in its 

markets, a step necessary for it to compete. Combining this with REALTOR®

association membership simply alleges neutral landscape facts that cannot support 

an antitrust conspiracy. See In re Online Travel Co. Hotel Booking Antitrust Litig., 

997 F.Supp.2d 526, 539-41 (N.D. Tex. 2014). The Plaintiffs fail to allege facts 

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showing when and how JPAR entered and joined an allegedly pre-existing 

conspiracy. Bailey Lumber & Supply Co. v. Ga.-Pac. Corp., No. 08-cv-1394, 2009 

WL 2872307, *5 (S.D. Miss. Aug. 10, 2009) (Plaintiff’s failure to allege a time and 

method for a defendant joining the pre-existing conspiracy was one ground 

supporting dismissal of claims as to that defendant).

NAR and its members developed the allegedly anti-competitive rule in 1994-

1996. MLS across the country adopted it during 1996-1998. It is not enough to 

allege JPAR later became a member of NAR or of several MLS that enacted the rule. 

Plaintiffs must come forward with evidence that JPAR engaged in activities within 

NAR or the MLS that show a meeting of the minds with other members to keep the 

rule in place or thwart attempts to change it.1

The broker defendants who lost Sitzer/Burnett provide a stark contrast. Keller 

Williams formed in 1983 and participated in NAR from then forward. Re/Max 

formed in 1973 also participated in NAR during the development and 

implementation of the allegedly anti-competitive rule. Anywhere Real Estate, Inc. 

is the parent of several well-known real estate brokerages/franchisors. Two of the 

 

1 Adding JPAR’s owner Cairn or its affiliates JPAR Franchise, LLC and Your Castle Real Estate, 

LLC (YCRE) as defendants will not change the analysis. Cairn came into existence four years ago 

and played no role in NAR or the MLS its subsidiaries joined. JPAR Franchise, LLC came into 

existence 10 years after JPAR. YCRE began in 2004. long after the alleged conspiracy led to the 

adoption of the rule and also never held leadership positions in NAR or MLS it joined.

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best known, Century 21 founded in1971 and a NAR member during the relevant 

time-period and Coldwell Banker formed in 1906 and active in NAR throughout the 

development and implementation of the allegedly anti-competitive rule. While 

HomeServices of America only adopted its name in 1998. Its predecessor, AmerUs 

Home Services, Inc., began providing real estate brokerage services under the 

AmerUs Group umbrella in 1985. It was a NAR member throughout. JPAR, its 

owner, and its affiliates did not exist and did not participate in NAR’s formulation 

and implementation of the allegedly anti-competitive rule. There is no allegation 

beyond trade association and MLS membership of JPAR later combining with NAR 

and other brokers to protect or foster the rule.

B. Membership in a Trade Association and Compliance with its Rules 

Fails to Allege a Section 1 Conspiracy.

At bottom, Plaintiffs assert that JPAR’s membership in NAR – the largest 

trade association in the United States – and JPAR’s alleged adherence to NAR’s

policies and guidelines is sufficient to plead a massive nationwide conspiracy 

between JPAR and NAR. “A trade association is not by its nature a ‘walking 

conspiracy.’” Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 293-

294 (5th Cir. 1988); see also Wilk v. Am. Med. Ass’n, 895 F.2d 352, 374 (7th Cir. 

1990). Indeed, several circuits have held that an allegation that trade association 

members have followed the association’s rules, without more, is insufficient to plead 

a conspiracy in violation of Section 1 of the Sherman Act.

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For example, in Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1045-1048 (9th 

Cir. 2008), merchants using credit card sales alleged that two consortiums of credit 

card companies and banks conspired to fix fees for credit card sales. Plaintiffs 

asserted that the defendants’ membership and participation in the consortiums 

sufficed to show an agreement among the defendants to charge the fees set by the 

consortiums. The lower court dismissed the case for failure to state a claim and the

Ninth Circuit affirmed. Id. at 1048. The appellate court explained that allegations 

that the defendants merely “adopt[ed]” or “follow[ed]” a rule governing fees were 

“insufficient as a matter of law” to plead a Section 1 conspiracy. Id.

In In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 311-313 (3d 

Cir. 2010), plaintiffs alleged that the defendants (insurance brokers) had conspired 

to conceal fellow brokers’ receipt of commission payments in return for steering 

customers to certain insurers. To support their conspiracy claim, plaintiffs alleged 

that the defendants had conspired through their participation in a trade association, 

by which they “adopted” an allegedly anticompetitive policy governing disclosure 

of commission payments and adhered to that policy. Id. at 313, 349. The Third 

Circuit upheld the dismissal of the complaint, explaining that “neither defendants’ 

membership in the [trade group], nor their common adoption of the trade group’s 

suggestions, plausibly suggest conspiracy.” Id. at 349. Nor did allegations “that the 

defendant brokers collaborated in crafting” the challenged policy “insofar as [they] 

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allegedly ‘control[led] the affairs of [the trade association].’” Id. The Third Circuit 

required far more than allegations of collaborative effort through an association to 

plead an individual member’s conscious commitment to conspiracy. Id. at 350.

Similarly, in SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 435 (4th 

Cir. 2015), a merchant alleged that members of trade groups conspired to impose 

anticompetitive industry standards. The Fourth Circuit rejected the plaintiff’s 

argument that the promulgation of these standards was sufficient to establish

concerted action. Id. at 436. “In the usual case,” the court explained, an

“organization nor its participants will run afoul of antitrust law when they use 

ordinary processes to adopt unexceptional standards.” Id. 

Alleging that the members of a trade association showed a general 

commitment to follow its rules is, by itself, does not plausibly plead participation in 

a conspiracy.

C. The Consolidated Amended Complaint Does Not Allege a Horizontal 

Conspiracy among Real Estate Brokers.

Even if the Court were to conclude that Plaintiffs have plausibly alleged an 

agreement between JPAR and NAR, Plaintiffs still would fail to state a claim. The 

Amended Complaint does not sufficiently allege that JPAR ever agreed or even 

communicated with other brokers about the challenged NAR guidelines, let alone 

their potential impact on commission rates. Plaintiffs’ allegations of horizontal 

conspiracy between JPAR and other brokers rely on generic allegations of parallel 

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conduct followed by “a bare assertion of conspiracy.” Twombly, 550 U.S. at 556. 

Such “vague references to concerted action,” Insulate SB, 797 F.3d at 546, cannot 

survive a motion to dismiss.

Without an alleged agreement between JPAR and other brokers (most notably, 

the selling brokers who represented Plaintiffs), the alleged conspiracy fails because 

it is, at most, a “rimless” wheel conspiracy. That form of agreement – which 

resembles “separate spokes meeting at a common center . . . without the rim of the 

wheel to enclose the spokes” – is not “a single conspiracy” at all but, rather, an 

illustration of parallel conduct. See Kotteakos v. United States, 328 U.S. 750, 755 

(1946). 

Accordingly, all of the federal circuits that have addressed the question (the 

Second, Third, Fourth, Fifth, and Sixth Circuits) have “uniformly held rimless huband-spokes conspiracies do not violate § 1 of the Sherman Act” and dismissed 

Sherman Act claims where plaintiffs failed to adequately plead a horizontal 

agreement – that is, a “rim” connecting all of the spokes. In re EpiPen Direct 

Purchaser Litig., 2022 WL 1017770, at *7 (D. Minn. Apr. 5, 2022). See also

Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028, 1038 (8th 

Cir. 2000) (“[C]ommon membership [with competitors] in a trade association . . . is 

not probative of collusion as a matter of law.”); In re Processed Egg Prods. Antitrust 

Litig., 2019 WL 5656101, at *6 (E.D. Pa. Oct. 31, 2019) (holding that, to plead a 

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Section 1 conspiracy, “a plaintiff must evidence that alleged co-conspirators ‘acted 

other than independently’ in adhering to the trade association’s programming or 

guidelines.”) (citations omitted).

D. A Plaintiff Cannot Allege a Conspiracy to Restrain Trade by Fixing 

Prices Without Allegations of a Fixed Price.

Plaintiffs allege the conspiracy to restrain trade resulted in the Compensation 

Rule and it mandates inflated real estate commission levels. Consol. Am. Compl. 

¶¶ 3–4, 13–14, 99–100, 103, 109, 111–12, 118–19, 138, 143. A court cannot accept 

the allegations contradicted by the actual text of documents relied upon by a plaintiff. 

See Twombly, 550 U.S. at 568 n.13. If documents cited in a complaint that are central 

to the claims made, contradict the allegations in a complaint, the “exhibit and not the 

allegation controls.” United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 

F.3d 370, 377 (5th Cir. 2004).

According to the Consolidated Amended Complaint, the Compensation Rule 

does not require a listing broker to offer a buyer’s broker a specific commission—

neither a specific dollar amount nor a percentage. Consol. Am. Compl. ¶¶ 122, 126, 

128, 137. The Compensation Rule does nothing to dictate what level of 

compensation any party’s broker receives on a home sale. Thus, the Complaint 

alleges no facts showing the Compensation Rule could be a restraint on competition. 

See Grace v. Re/Max Holdings, No. 23-cv-06352, 2024 WL 2761188 (N.D. Cal.

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May 29, 2024) (Holding that plaintiffs failed to make plausible allegations that the 

Compensation Rule evidenced an anticompetitive arrangement when it did not 

require a material offer of commission).

III. THE ALLEGATIONS DO NOT STATE FACTS TO SUPPORT A PER

SE NOR A RULE OF REASON ANTITRUST VIOLATION.

To determine whether an agreement unreasonably restrains competition and 

becomes a conspiracy in violation of Section 1, courts apply one of two methods of 

analysis, depending on the nature of the agreement at issue. “The ‘prevailing 

standard’ for assessing the effect on competition of most restraints is the rule of 

reason, which requires an analysis of the restraint’s actual effect on competition in a 

relevant market.” ABA Antitrust Law Section, Antitrust Law Developments, p. 53 

(9th Ed. 2022). “Some categories of restraints, however, * * * are conclusively 

presumed to unreasonably restrain competition without analysis of the market in 

which they occurred, study of their actual effects on competition, or evaluation of 

their purpose. Such agreements are considered illegal per se.” Id. 

A. The Allegations Do Not Support a Conclusion of a per se Violation.

Per se cases are the exception, not the rule. See Texaco Inc. v. Dagher, 547 

U.S. 1, 5 (2006) (“[Courts] presumptively appl[y] rule of reason analysis, under 

which antitrust plaintiffs must demonstrate that a particular contract or combination 

is in fact unreasonable and anticompetitive before it will be found unlawful.”); 

Craftsmen Limousine, Inc. v. Ford Motor Co., 363 F.3d 761, 772 (8th Cir. 2004)

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(“The rule of reason is the prevailing standard for determining a restraint’s effect in 

a relevant market.”) (internal quotation marks and citation omitted). Nevertheless, 

Plaintiffs allege they have pleaded a conspiracy that is illegal per se. Consol. 

Amend. Compl. at ¶ 177 (ECF No. 199). They are wrong for two reasons.

First, courts have had limited experience evaluating the effect of NAR’s 

Compensation Rule on prices and competition. See Leegin Creative Leather 

Products, Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007). “[A] per se rule is 

appropriate only after courts have had considerable experience with the type of 

restraint at issue.” Id; see also Craftsmen Limousine, 363 F.3d at 773 (“Because of 

the strength of [the rule of reason] presumption, the per se analysis is appropriate 

only where experience with a particular kind of restraint enables the court to predict 

with confidence that the rule of reason will condemn it.”) (internal quotation marks 

and citation omitted). The Sitzer/Burnett action, tried last year in the United States 

District Court for the Western District of Missouri, is the only case in which a federal 

court has made final rulings on the legality of the Compensation Rule or other NAR

policies. 

Second, “[p]er se unreasonable restraints of trade are typically only 

‘horizontal restraints’ – [that is,] restraints that are imposed between competitors.” 

In re Jan. 2021 Short Squeeze Trading Litig., 105 F.4th 1346, 1355 (11th Cir. 2024)

(quoting Ohio v. Am. Express Co., 585 U.S. 529, 540-41 (2018)). Only a horizontal 

Case 4:23-cv-01013-SDJ Document 233 Filed 10/11/24 Page 21 of 27 PageID #: 967
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conspiracy between direct competitors can support an allegation of a per se violation. 

New Orleans Ass’n of Cemetery Tour Guides and Cos. v. New Orleans Archdiocesan 

Cemeteries, 56 F.4th 1046, 1035-36 (5th Cir. 2023) (Affirming dismissal of per se 

claim as tour guide company and cemetery operator did not directly compete and, 

therefore, could not engage in horizontal conspiracy). As shown immediately above, 

the Amended Complaint does not allege facts sufficient to support the existence of 

a horizontal conspiracy between JPAR and other brokers, including but not limited 

to Plaintiffs' listing brokers.

Courts apply rule-of-reason analysis in the few antitrust cases regarding MLS 

rules and policies. Robertson v. Sea Pines Real Estate Cos., Inc., 679 F.3d 279, 290 

(4th Cir. 2012); Realcomp II, Ltd. v. FTC, 635 F.3d 815, 819, 825-27 (6th Cir. 2011); 

Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 321 (7th Cir. 2006) (applying rule 

of reason); Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995, 1014-15 (6th Cir. 

1999); Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1579-80 (11th Cir. 

1991); United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1365 (5th Cir. 1980). 

Up until the Sitzer/Burnett case there appeared to be “...no federal case in which a 

court has applied a per se analysis to an MLS.” O’Riordan v. Long Island Bd. of 

Realtors, Inc., 707 F. Supp. 111, 115 (E.D.N.Y. 1988). This Court should not follow 

the sole outlier.

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B. A Defined and Plausible Geographic and Product Market must be 

Alleged to Support a Rule-of-Reason Claim and Plaintiffs do not Make 

Such Allegations.

As an alternative to per se illegality, the Amended Complaint purports to state 

a Section 1 violation under the rule of reason. In order to survive a Rule 12(b)(6)

motion to dismiss in a rule-of-reason case, “Section One plaintiffs must define both 

(1) a geographic market and (2) a product market.” Jacobs v. Tempur-Pedic Int'l, 

Inc., 626 F.3d 1327, 1336 (11th Cir. 2010) (affirming district court’s Rule 12(b)(6) 

dismissal for failure to properly allege product and geographic markets). Accord, 

Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 962 (6th Cir. 

2004) (“Failure to identify a relevant market is a proper ground for dismissing a 

Sherman Act claim.”); Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340, 345 (8th 

Cir. 1995) (“Antitrust claims often rise or fall on the definition of the relevant 

market.”).

Although the parameters of a given market are questions of fact, “antitrust 

plaintiffs still must present enough information in their complaint to plausibly 

suggest the contours of the relevant geographic and product markets.” Jacobs, 64 

F.3d at 345. See also Concord Assocs., L.P. v. Ent. Properties Tr., 817 F.3d 46, 53 

(2d Cir. 2016) (“[I]n order to survive a motion to dismiss, it is appropriate for a 

district court to assess whether the plaintiffs’ complaint asserts sufficient facts to 

allege plausibly the existence of both a product and geographic market.”).

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Plaintiffs have not pleaded a geographic market. In truth, they have not even 

tried. The Amended Complaint mentions “local real estate market[s,]” Amended 

Complaint ¶ 96, the “markets of Alabama,” Id. ¶ 28, and “the United States’ real 

estate markets,” Id. ¶ 60, but these alleged markets are not defined, nor do Plaintiffs 

assert that they are antitrust geographic markets. 

Nor could they be geographic markets under Section 1. The relevant 

geographic market is “the area of effective competition in which a product or its 

reasonably interchangeable substitutes are traded.” L.A. Draper & Son v. 

Wheelabrator–Frye, Inc., 735 F.2d 414, 423 (11th Cir. 1984) (quotation omitted). 

In order to allege a valid geographic market, “a plaintiff must plead facts such as 

whether outside sellers are precluded from entering the market and whether 

consumers cannot realistically turn outside the geographic area[.]” Duty Free 

Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1263 (11th Cir. 

2015). “[E]conomic and physical barriers to expansion [such] as transportation 

costs, delivery limitations and customer convenience and preference” are relevant to 

this determination. Id. (citing L.A. Draper & Son, 735 F.2d at 423). The Amended 

Complaint does not address these essential considerations.

Plaintiffs have also failed to plead a product market. The “reasonable 

interchangeability” standard is “[t]he essential test for ascertaining the relevant 

product market.” White & White, Inc. v. Am. Hosp. Supply Corp., 723 F.2d 495, 500 

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(6th Cir.1983); Duty Free Americas, 797 F.3d at 1264 (same). Reasonable 

interchangeability, in turn, “is assessed by considering (1) product uses (whether 

substitute products can perform the same function) and/or (2) consumer response 

(also known as “cross-elasticity”), defined as ‘consumer sensitivity to price levels at 

which they elect substitutes for the defendant's product or service.’” Kentucky 

Speedway, LLC v. Nat'l Ass'n of Stock Car Auto Racing, Inc., 588 F.3d 908, 917 (6th 

Cir. 2009) (quoting Worldwide Basketball, 388 F.3d at 961). The Amended 

Complaint alleges no facts about product uses or consumer-response (i.e., crosselasticity), which means it does not allege a valid product market. 

This Court should dismiss the Consolidated Amended as it attempts to allege 

a Section 1 rule-of-reason claim. Plaintiffs allege market power, but do not allege a 

market. Consol. Amend. Compl. ¶¶ 149-152 but do not allege a market.

(“Defendant, in collaboration with their co-conspirators, possesses market power in 

each relevant market, derived from their control of the local MLSs and their 

predominant share in the local market, particularly in this District.”).

CONCLUSION

For the foregoing reasons, this Court should dismiss the Amended Complaint 

for failure to state a claim. See FED. R. CIV. P 12(b)(6).

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Respectfully submitted,

By: /s/Marcus Angelo Manos

Marcus Angelo Manos (pro hac vice) Fed. ID 4828

mmanos@maynardnexsen.com 

MAYNARD NEXSEN PC

1230 Main Street, Suite 700

Columbia, South Carolina 29201

Telephone: (803) 771-8900

Facsimile: (803) 253-8277

Carlos R. Soltero

Texas State Bar No. 0791702

csoltero@maynarnexsen.com

Gregory P. Sapire

Texas State Bar No. 00791601

gsapire@maynardnexsen.com

MAYNARD NEXSEN PC

2500 Bee Caves Road

Building 1, Suite 150

Austin, TX 78746

(512) 969-640 (telephone)

(512) 359-5774 (facsimile)

Carl S. Burkhalter (pro hac vice)

cburkhalter@maynardnexsen.com

MAYNARD NEXSEN PC

1901 Sixth Avenue N, Suite 1700

Birmingham, AL 35203

Telephone: 205.254.1081

Facsimile: 205.254.1991

Alexandra H. Austin (pro hac vice)

aaustin@maynardnexsen.com

MAYNARD NEXSEN PC

205 King Street, Suite 400

Charleston, South Carolina 29401

Telephone: (843) 579-7827

Facsimile: (843) 414-8227

ATTORNEYS FOR DEFENDANT J.P. PICCININI

REAL ESTATE SERVICES, LLC (A/K/A JPAR REAL ESTATE)

October 11, 2024

Case 4:23-cv-01013-SDJ Document 233 Filed 10/11/24 Page 26 of 27 PageID #: 972
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served upon all counsel of record 

below via the Court’s electronic filing system on October 11, 2024.

/s/ Marcus Anglo Manos

Marcus Angelo Manos (pro hac vice)

Fed. Id. 4828

Case 4:23-cv-01013-SDJ Document 233 Filed 10/11/24 Page 27 of 27 PageID #: 973