NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 28 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT TOP AGENT NETWORK, INC., No. 21-16494

Plaintiff-Appellant, D.C. No. 3:20-cv-03198-VC v.

MEMORANDUM* NATIONAL ASSOCIATION OF REALTORS; SAN FRANCISCO ASSOCIATION OF REALTORS,

Defendants-Appellees, and CALIFORNIA ASSOCIATION OF REALTORS, INC.,

Defendant.

Appeal from the United States District Court

for the Northern District of California

Vince Chhabria, District Judge, Presiding

Submitted August 24, 2023**

San Francisco, California Before: BUMATAY, KOH, and DESAI, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Top Agent Network (“Top Agent”) appeals the district court’s dismissal of its third amended complaint for failure to state a claim with prejudice. We review de novo. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

In 2019, the National Association of Realtors (“the Association”) adopted a policy prohibiting member-realtors from marketing properties on private listing services without also listing them on the Association’s public listing services. Top Agent, the operator of a private listing service, sued the Association under the Sherman Act, 15 U.S.C. § 1, and corollary state laws. Top Agent alleges that the policy is a per se group boycott because it forces agents to either avoid non-MLS listing services like Top Agent or agree to unfavorable terms. The district court dismissed Top Agent’s third amended complaint for failure to state a claim without leave to amend. Top Agent Network v. Nat’l Ass’n of Realtors, 554 F.Supp.3d 1024 (N.D. Cal 2021).

After dismissal but before briefing in this case, we considered the sufficiency of similar allegations in PLS.com v. Nat’l Ass’n of Realtors, 32 F.4th 824, 832–41 (9th Cir. 2022), cert. denied, 143 S. Ct. 567 (2023). Because the facts of PLS.com are sufficiently analogous to the facts as alleged here, we vacate the district court’s order and remand Top Agent’s claims for reconsideration under PLS.com.

VACATED and REMANDED.

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