In United States v. Realty Multi-List, Inc., the Fifth Circuit Court of Appeals became the first federal appellate court to address the issue of whether the use of certain membership criteria by a real estate multiple listing service violates antitrust law. Judge Goldberg enunciated a three stage framework of analysis that allows for justification of a challenged practice, and requires proof of only potential, not actual, anticompetitive effects. Applying this test, the court held that the defendant multiple listing service's membership criteria, although not per se illegal, were facially unreasonable, and that the use of these criteria led to a group boycott of nonmember brokers in violation of section 1 of the Sherman Act. The court's holding was contingent upon whether plaintiff, on remand, could prove defendant possessed sufficient market power and interstate commerce connections.
"Multiple Listing Services and the Sherman Act: Fifth Circuit Applies "Facial" Rule of Reason Analysis,"
Mercer Law Review: Vol. 32:
4, Article 17.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol32/iss4/17