Compass, which previously slammed Northwest MLS’s (NWMLS) motion to dismiss its antitrust suit as “misleading and self-serving,” officially fired back Monday with a formal reply filed in U.S. District Court in Seattle.
Originally filed in April, Compass claims that NWMLS’s listing rules, which mandate that members must input listings into the MLS within 24 hours of public marketing and prevent brokers from keeping any office exclusive listings, are anticompetitive.
In its motion to dismiss the suit filed in late June, NWMLS claims that Compass “fails to allege a cognizable relevant market,” that its “own allegations undermine any claim of anticompetitive effects and confirm the pro-competitive nature of NWMLS’ rules,” and that the complaint alleges no harm to competition or exclusionary conduct.
In its reply brief, Compass came of out the gate swinging referring to NWMLS as “a monopoly created by combining otherwise competing real estate brokers,” and claiming that it “abuses its immense power by controlling how homes are sold in the Seattle area, blocking consumer choice and broker competition, and forcing home sellers and their brokers to market their homes through NWMLS.”
Compass reiterated its claim that NWMLS harms sellers and Compass by forcing brokers to submit all of their listings to NWMLS before marketing them. Additionally, Compass claims that NWMLS quickly changed “another rule that, on its face, allowed a broker to pre-market certain listings before submitting them to NWMLS,” and that it ignores “a third rule that, also on its face, allows pre-marketing of certain listings.”
According to Compass, discovery will show if NWMLS has taken these actions to protect its alleged monopoly, or to protect the commissions of local incumbent brokers, or both.
“We know that NWMLS is not doing this to protect home sellers or competition,” the reply brief states.
Pre-marketing ‘enshrined in federal antitrust agency statements’
Compass argues that the importance of pre-marketing a property “is enshrined in federal antitrust agency statements criticizing mandatory submission policies, like NWMLS’s, and the antitrust policy of the real estate broker trade association, which protects office exclusives.”
In the brief, Compass addresses two arguments made by NWMLS in its motion to dismiss the suit. The brokerage plaintiff claims that while NWMLS uses words like “transparency” and “fairness” to justify its policies, there is “no evidence, and no allegations in the Complaint, showing such issues are present with pre-marketing.”
Additionally, Compass addresses NWMLS’ claim that it is immune from scrutiny because Compass agreed to follow the MLS’s rules, again highlighting its allegation that NWMLS changed its rules to block Compass from offering pre-marketing choices to sellers.
NWMLS conduct and rules are ‘anticompetitive’
Compass also argues that it has successfully pled its federal and state antitrust claims and that NWMLS’s conduct and rules are per se anticompetitive, meaning that the conduct and the rules alone are themselves anticompetitive. Compass states that the rules are per se anticompetitive because they block competition by forcing agents to submit all of their listing to the MLS, which the plaintiff argues eliminates competition.
“As alleged in the Complaint, NWMLS’s conduct impairs the ability of any other listing service to compete with NWMLS by requiring the vast majority of brokers to supply to dominant listing service (NWMLS), even if other listing service products are better on the merits,” the brief states.
If the court disagrees with a per se approach, Compass also argues that NWMLS’s conduct is also anticompetitive under the rule of reason approach.
“The Complaint shows a ‘substantial anticompetitive effect directly’ by showing ‘proof of actual detrimental effects on competition such as reduced output, increased prices, or decreased quality in the relevant market.’ Thus, ‘no inquiry into market definition and market power is required,’” the brief states.
The brief also addresses NWMLS’s duty-to-deal arguments, in which the MLS defendant claims that it cannot be found liable for monopolization claims “based on its rules because it has no duty to deal with Compass.” This is the same argument Zillow has made in its reply to Compass’s motion for a preliminary injunction in that suit related to Zillow’s listing access standards policy.
Compass argues that the rule does not apply because it alleges that NWMLS is creating and maintaining a monopoly, and because it maintains that NWMLS is “imposing anticompetitive restrictions on other competitors.”
Due to these arguments, Compass claims that dismissing the suit without prejudice would be improper. If the suit is not dismissed it will progress into discovery. A trial date is set for June 8, 2026.
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