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Filing # 196840433 E-Filed 04/23/2024 07:35:31 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
COMPLEX BUSINESS LITIGATION DIVISION
PARKER HOLDING GROUP INC.,
Plaintiff,
CASE NO.: 2023-27749-CA-01
Vv,
FLORIDA ASSOCIATION OF REALTORS,
THE KEYES COMPANY, LPT REALTY,
LLC, CHARLES RUTENBERG REALTY,
INC., CHARLES RUTENBERG REALTY —
ORLANDO, LLC, UNITED REALTY
GROUP, INC, THE K COMPANY
REALTY, LLC, FLORIDA HOMES
REALTY & MORTGAGE LIMITED
LIABILITY COMPANY, DALTON WADE,
INC., AVANTI WAY REALTY, LLC, MVP
REALTY ASSOCIATES LLC, FLORIDA
REALTY OF MIAMI CORP., LIFESTYLE
INTERNATIONAL REALTY LLC,
WATSON REALTY CORP., PREMIERE
PLUS REALTY CO., FUTURE HOME
REALTY, INC., MICHAEL SAUNDERS &
COMPANY,
Defendants.
DEFENDANTS’ JOINT MOTION TO DISMISS THE AMENDED COMPLAINT AND
INCORPORATED MEMORANDUM OF LAW
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT
RELEVANT FACTUAL BACKGROUND
A Real Estate Transactions (Selling and Buying the Home)
1 Real Estate Broker Transaction Services
2 Sellers Compensate Real Estate Brokers for the Significant Value Their
Services Provide to Sellers.
The Florida Real Estate Industry
Pertinent Trade Association Policies
1 The Challenged Policy Regarding Offers of Compensation. 10
D. The Parties 11
LEGAL STANDARD. 12
A The Florida Antitrust Ac 12
B The Florida Deceptive and Unfair Trade Practices Act 16
ARGUMENT 17
I THE COURT SHOULD DISMISS COUNT I WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM UNDER THE FLORIDA ANTITRUST ACT 17
A The Court Should Dismiss Plaintiff's FAA Claim Because the Amended
Complaint Fails to Plausibly Allege an Agreement Among Defendants and
Innumerable Asserted Co-Conspirators 18
1 The Amended Complaint’s Allegations Regarding the Alleged
Adoption of, or Compliance with, Trade Association Practices Do Not
Support an Inference of Conspiracy 20
The Amended Complaint’s Contradictory Allegations Fail to Establish
Defendants’ “Control” of the MLS Rules.. 22
Broker Defendants’ Alleged Conduct Is Consistent with Unilateral
Self-Interest, Not Indicative of Conspiracy 25
The Court Should Dismiss Plaintiff's FAA Claim Because the Amended
Complaint Fails to Allege a Plausible Relevant Product or Geographic
Market. 28
1 The Amended Complaint Fails to Adequately Allege a Product Market
Because the Two-Sided Market for Home Sale Transactions Is the Only
Plausible Market Here. 29
The Amended Complaint Also Fai to Allege a Plausible Geographic
Market... 33
The Court Should Dismiss Plaintiff's FAA Claim Because the Amended
Complaint Fails to Plausibly Allege That Defendants’ Conduct Caused Harm
in A Relevant Market 34
1 The Amended Complaint Fails to Allege Anticompetitive Effects on
Real Estate Transactions 35
The Amended Complaint Ignores That Sellers Benefit from Offering to
Pay Buyer-Agents’ Commission and Fails to Allege Harm to Buyers. 36
Plaintiff Fails to Plausibly Allege It Was Harmed When It Agreed to
the Terms of Its Broker’s Commissions 37
D. The Court Should Dismiss Plaintiff's FAA Claim Because the Amended
Complaint Fails to Allege Facts Establishing Plaintiff's Standing. 41
Il. THE COURT SHOULD DISMISS COUNT II WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM UNDER THE FLORIDA DECEPTIVE AND UNFAIR
TRADE PRACTICES ACT. 43
A The Alleged Conduct Is Exempt from FDUTPA Under Its Plain Language 43
B The Amended Complaint Fails to Plead a Viable FDUTPA Claim 45
III. DISMISSAL WITH PREJUDICE IS APPROPRIATE BECAUSE PLAINTIFF
CANNOT CURE ITS COMPLAINT’S DEFICIENCIES 47
CONCLUSION 49
il
TABLE OF AUTHORITIES
Page(s)
Cases
Age of Empire, Inc. v. Ocean Two Condo. Ass'n, Inc.,
367 So. 3d 1278 (Fla. 3d DCA 2023)
Alhallag v. Radha Soami Trading, LLC,
484 F. App’x 293 (11th Cir. 2012) 47
All Care Nursing Serv., Inc. v. High Tech St ‘ing Servs., Inc.
135 F.3d 740 (11th Cir. 1998) 13
Alvarez v. DeAguirre,
395 So. 2d 213 (Fla. 3d DCA 1981) 47
Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283 (11th Cir. 2010) 20
Am. Needle, Inc. v. Nat'l Football League,
560 U.S. 183 (2010) 12
Am. Tobacco Co. v. United States,
328 U.S. 781 (1946) 14
Angelo v. Parker,
275 So. 3d 752 (Fla. Ist DCA 2019) 16, 45
Ashcroft v. Iqbal,
556 U.S. 662 (2009) 14, 41
Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co.,
953 F.3d 707 (11th Cir. 2020) 41
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) passim
Bolinger v. First Multiple Listing Serv., Inc.,
838 F. Supp. 2d 1340 (N.D. Ga. 2012) 21, 27
Buccaneer Energy (USA) Inc. v. Gunnison Energy Corp.,
846 F.3d 1297 (10th Cir. 2017) 28
Buffalo Trump Tower One, LLC v. TRG Sunny Isles V, Ltd.,
No. 08-21857-CIV, 2009 WL 10667160 (S.D. Fla. Mar. 19, 2009) 44, 45
iil
Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101 (7th Cir. 1984) 28
Chubirko v. Better Bus. Bureau ofS. Piedmont, Inc.,
763 F. Supp. 2d 759 (W.D.N.C. 2011) 24
City of Tuscaloosa v. Harcros Chems., Inc.,
158 F.3d 548 (11th Cir. 1998) 26
Cont’l Baking Co. v. Vincent,
634 So. 2d 242 (Fla. Sth DCA 1994) 12
Cont’l T.V., Inc. v. GTE Sylvania Inc.,
433 U.S. 36 (1977) 15
Copperweld Corp. v. Indep. Tube Corp.,
467 U.S. 752 (1984) 13
Coronavirus Rep. v. Apple Inc.,
No. 21-cv-05567, 2021 WL 5936910 (N.D. Cal. Nov. 30, 2021), it'd 84
F.4th 948 (9th Cir. 2023) 32, 33,35
In re Fla. Cement & Concrete Antitrust Litig.,
746 F. Supp. 2d 1291 (S.D. Fla. 2010) 17, 25, 46
FTC v. Qualcomm Inc.,
969 F.3d 974 (9th Cir. 2020) 28
Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc.,
629 So. 2d 252 (Fla. 3d DCA 1993) 43
Horowitz v. Laske,
855 So. 2d 169 (Fla. Sth DCA 2003) 12, 41
In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300 (3d Cir. 2010). 21
Jacobs v. Tempur-Pedic Int’l., Inc.,
626 F.3d 1327 (11th Cir. 2010) passim
Jones v. Micron Tech. Inc.,
400 F. Supp. 3d 897 (N.D. Cal. 2019) 27
Kelsey K. v. NFL Enters., LLC,
757 F. App’x 524 (9th Cir. 2018) 19, 21, 24
Kendall v. Visa USA, Inc.,
518 F.3d 1042 (9th Cir. 2008) 21
Iv
Levine v. Cent. Fla. Med. Affiliates, Inc.,
72 F.3d 1538 (11th Cir. 1996) 15, 16, 18
Mack v. Bristol-Myers Squibb Co.,
673 So. 2d 100 (Fla. Ist DCA 1996) 17, 45
Maroone Chevrolet, LLC v. Alvarado,
344 So. 3d 459 (Fla. 4th DCA 2022) 46
McIntyre v. Marriott Ownership Resorts, Inc.,
No. 13-80184-CIV, 2013 WL 12212640 (S.D. Fla. Dec. 10, 2013) 43, 45
Morali v. Mayan,
377 So. 3d 1182 (Fla. 4th DCA 2024)
Murga v. United Prop. & Cas. Ins. Co.,
941 So. 2d 482 (Fla. 3d DCA 2006) 47, 48
MYD Marine Distrib., Inc. v. Int’l Paint Ltd.,
76 So. 3d 42 (Fla. 4th DCA 2011) 13
Nat'l Soc’y of Pro. Eng’rs v. United States,
435 U.S. 679 (1978) 16
Ohio v. Am. Express Co.,
585 U.S. 529 (2018) passim
Okeelanta Power Ltd. P’ship v. Fla. Power & Light Co.,
766 So. 2d 264 (Fla. 4th DCA 2000) 14, 41, 43
In re Online Travel Co. (OTC) Hotel Booking Antitrust Litig.
997 F. Supp. 2d 526 (N.D. Tex. 2014) 25
Parker Auto Body Inc. v. State Farm Mut. Auto. Ins. Co.
171 F. Supp. 3d 1274 (M.D. Fla. 2016) 41
Parts Depot Co., L.P. v. Fla. Auto Supply, Inc.,
669 So. 2d 321 (Fla. 4th DCA 1996)... 28
Peters v. Keyes Co.,
No. 10-60162-CIV, 2010 WL 1645095 (S.D. Fla. Apr. 21, 2010) 44
Plastiquim, S.A. v. Odebrecht Constr., Inc.,
337 So. 3d 1270 (Fla. 3d DCA 2022) 12
QO Club Resort & Residences Condo. Ass'n, Inc. v. Q Club Hotel, LLC,
No. 09-CV-60911, 2010 WL 11454483 (S.D. Fla. Jan. 6, 2010) 28, 33
OSGI Inc. v. IBM Glob. Fin.,
No. 11-CV-80880, 2012 WL 13019046 (S.D. Fla. July 31, 2012). 17, 39, 45
Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co.,
917 F.3d 1249 (11th Cir. 2019) (en banc) passim
Rigby v. Philip Morris USA, Inc.,
No. CV 513-110, 2015 WL 1275412 (S.D. Ga. Mar. 19, 2015) 26
Rodriguez v. Recovery Performance & Marine, LLC,
38 So. 3d 178 (Fla. 3d DCA 2010) 46
SD3, LLC v. Black & Decker (U.S.) Inc.,
801 F.3d 412 (4th Cir. 2015) 21
Sea Shelter IV, LLC v. TRG Sunny Isles V, Ltd.,
No. 08-21767-CIV, 2009 WL 692469 (S.D. Fla. Mar. 17, 2009) 45
Sentry Data Sys. v. CVS Health,
316 F. Supp. 1279 (S.D. Fla. 2018) 33
Smith v. Smith,
232 So. 3d 509 (Fla. Ist DCA 2017) 38
Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc.,
376 F.3d 1065 (11th Cir. 2004) 16, 24, 34, 48
Stearns v. Select Comfort Retail Corp.,
No. 08-2746 JF, 2009 WL 1635931 (N.D. Cal. June 5, 2009) 47, 48
Stein v. BBX Capital Corp.,
241 So. 3d 874 (Fla. 4th DCA 2018) 12
Stockman v. Downs,
573 So. 2d 835 (Fla. 1991).
Thompson v. Metro. Multi-List, Inc.,
934 F.2d 1566 (11th Cir. 1991) 40
United Am. Corp. v. Bitmain, Inc.,
530 F. Supp. 3d 1241 (S.D. Fla. 2021) 13, 14,19
Williamson Oil Co., Inc. v. Philip Morris USA,
346 F.3d 1287 (11th Cir. 2003) 25, 26
Statutes
15 U.S.C. § 1 passim
vi
Fla. Stat. § 90.202 (2023)
Fla. Stat. § 475.02 (2023)
Fla. Stat. § 475.25 (2023) 44, 45
Fla. Stat. § 475.42 (2023) 44
Fla. Stat. § 475.278 (2023) passim
Fla. Stat. § 475.451 (2023)
Fla. Stat. § 501.204 (2023) 16
Fla. Stat. § 501.212(6) (2023) passim
Fla. Stat. § 501.2105 (2023)
Fla. Stat. § 542.18 (2023) 13
Fla. Stat. § 542.22 (2023)
Fla. Stat. § 542.32 (2023) 13
Other Authorities
David S. Evans & Michael Noel, Defining Antitrust Markets When Firms Operate
Two-Sided Platforms, Colum. Bus. L. Rev 667 (2005) 31
David S. Evans & Richard Schmalensee, Markets with Two-Sided Platforms, |
Issues in Competition L. & Pol’y 667 (2008) 30
David S. Evans, The Antitrust Economics of Multi-Sided Platform Markets, 20
Yale J. on Reg. 325 (2003) 30
Fla. R. Civ. P. 1.110(b) 1,12
Fla. R. Civ. P. 1.130(b)
vii
Defendants Florida Association of Realtors, The Keyes Company, LPT Realty, LLC,
Charles Rutenberg Realty, Inc., Charles Rutenberg Realty — Orlando, LLC, United Realty Group,
Inc., The K Company Realty, LLC, Florida Homes Realty & Mortgage Limited Liability
Company, Dalton Wade, Inc., Avanti Way Realty, LLC, MVP Realty Associates LLC, Florida
Realty of Miami Corp., Lifestyle International Realty LLC, Watson Realty Corp., Premiere Plus
Realty Co., Future Home Realty, Inc., and Michael Saunders & Company (collectively,
“Defendants”), by and through their respective counsel, pursuant to Fla. R. Civ. P. 1.110(b), hereby
file this Joint Motion to Dismiss Plaintiff's First Amended Class Action Complaint (the “Amended
Complaint”)! Defendants are entitled to attorney’s fees and costs pursuant to: (i) § 501.2105,
Fla. Stat. (2023) and (ii) § 542.22, Fla. Stat. (2023). See Stockman v. Downs, 573 So. 2d 835, 837-
38 (Fla. 1991).
PRELIMINARY STATEMENT
Even after amending its complaint following review of Defendants’ motions to dismiss,
Parker Holding Group, Inc. (“Plaintiff”) still fails to allege any viable claims. The Amended
Complaint continues to challenge longstanding practices regarding disclosure of real estate broker
compensation while wholly ignoring the inextricable connection between broker services and the
underlying home sale transaction. In doing so it runs afoul of fundamental principles for pleading
an antitrust claim. Plaintiff has now had two bites at the apple. As demonstrated below, the Court
should dismiss this case with prejudice as a matter of law.
At the crux of this case are residential real estate transactions—the buying and selling of
homes in Florida. Sellers want to sell their homes for the highest price they can command.” The
' Defendants expressly preserve, and do not waive, arbitration rights as to unnamed class members.
? Defendants’ references to the “highest price” encompass other seller considerations, such as
timing and method of payment (e.g., cash versus financing).
law of supply and demand, and common sense, dictate that the higher the number of potential
buyers, the higher the price a property will command. However, most sellers do not have the
expertise or resources to maximize the number of qualified buyers or to handle all aspects of the
sale process—from putting the house on the market through closing—without professional
assistance.> The services provided by brokers and agents in facilitating home sales are thus a
fundamental aspect of Florida’s residential real estate market. And completed home sales typically
are the only way that brokers earn compensation for the services they provide.
Plaintiff claims that defendants Florida Association of Realtors (“Florida Realtors”) and
sixteen Florida real estate brokers (collectively, “Broker Defendants”) violated the Florida
Antitrust Act (“FAA”) and the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) by
agreeing—with tens of thousands of unnamed co-conspirators—to artificially inflate the
commissions that home sellers pay brokers in Florida. Plaintiff's claims hinge on the practice of
Multiple Listing Services (“MLSs”) in Florida—which are not Defendants—to require that a
seller-broker transparently disclose, in the MLS listing, the offer of compensation that it will make
to a buyer-agent who procures a successful buyer.
Plaintiff fails to allege sufficient facts for the Court to find such an agreement plausibly
exists. The Amended Complaint contains no facts constituting direct evidence of an unlawful
> The real estate professionals in Florida referenced in the Amended Complaint are: “agents” and
“brokers”. Am. Compl. §j 46. “Agent” describes an individual who is “licensed by the state to
help people buy and sell homes.” Jd. “Broker” is a real estate agent “who obtain[s] further
education and [is] licensed by the state to start their own brokerage firm.” Jd. “Realtor” is a
federally registered collective membership mark that identifies a real estate professional who is a
member of the National Association of Realtors (“NAR”). Plaintiff's list does not encompass all
terms used to identify the various types of real estate licensees (see, e.g., § 475.278, Fla. Stat.
(2023)), but for purposes of this motion Defendants will utilize Plaintiff's terminology: a “seller-
broker” is the real estate licensee (broker or agent) that works with a home seller, and a “buyer-
agent” is the real estate licensee (broker or agent) that works with a home buyer. When the
distinction is not germane, the terms “broker” and “agent” are used interchangeably.
agreement among Defendants. It instead declares a “conspiracy” by pointing to (i) Defendants”
adoption of trade association guidance put in place, as Plaintiff acknowledges, decades ago by
non-party National Association of Realtors (“NAR”), and (ii) Defendants’ individual choices to
adhere to MLS rules, which Plaintiff acknowledges Broker Defendants must follow to list
properties for sale in an MLS database. Plaintiff attempts to bolster its contention of an industry-
wide agreement with a handful of allegations about a small number of Broker Defendants’
involvement in local Realtor associations, MLSs, or Florida Realtors. But all of this alleged
conduct is in each Defendant’s independent self-interest and so, as a matter of law, is not
suggestive ofa conspiracy. Plaintiff’s allegations thus fall short of what is required to adequately
allege an antitrust conspiracy among the named Defendants (let alone a conspiracy that also
includes countless thousands of supposed unnamed co-conspirators). See discussion infra Part
LA.
An antitrust plaintiff also must plead facts establishing a relevant market in which
Defendants’ conduct restrains competition. Here, Plaintiff's FAA claim fails because its
allegations of a supposed market for the “bundle of broker services” ignore the need for a
consummated home sale and thus the actual relevant market for home sales. The Supreme Court
requires that in assessing antitrust claims concerning markets like real estate, courts must analyze
the impact of alleged anticompetitive conduct on the relevant market as a whole. See Ohio v. Am.
Express Co., 585 U.S. 529, 5540 (2018) (hereinafter AmEx). Here, that relevant market is two-
sided, necessarily encompassing the underlying real estate transaction, including impacts on both
the seller and the buyer. The Amended Complaint, however, focuses exclusively on sellers
assertedly overpaying for the “bundle of services” that brokers provide. It does not consider the
underlying home sale transaction, which is the very reason why the seller pays for those services.
And, the Amended Complaint alleges no plausible geographic market, merely alleging in one
conclusory pronouncement that there are numerous unspecified geographic markets throughout
the State of Florida. Because Plaintiff does not allege a plausible relevant product or geographic
market, its Amended Complaint fails to state a claim under the FAA. See discussion infra Part
IB.
Plaintiff likewise does not, and cannot, plausibly allege any anticompetitive effects. The
omission of consideration of the home sales market is again fundamental and fatal. Sellers want
to sell their home for as much as possible. They want to attract as many potential buyers as
possible. One way that sellers attract buyer-agents and buyers to their property is by offering to
pay transaction-related fees, such as broker commissions. Yet Plaintiff's nonsensical theory of
harm is that the very conduct that facilitates the sale of the property and thus benefits the seller is
actually what harms the seller. See discussion infra Part I.C. Even apart from the failure to account
for home sale transactions, Plaintiff cannot plausibly contend that the commissions it paid were
higher than they would have been in the absence of the challenged MLS disclosure practice.
Plaintiff nowhere alleges that it was unable to negotiate with its chosen seller-broker when hiring
it, including negotiating any offer of compensation to be offered to buyer-agents. The Amended
Complaint also ignores the pro-competitive, pro-consumer reasons for the challenged MLS
disclosure practices (e.g., to ensure transparency in real estate transactions and facilitate home
sales). See discussion infra Part LC.
Plaintiff also does not adequately allege that it has standing to bring its antitrust claim.
The Amended Complaint provides only minimal information regarding Plaintiff's transactions,
providing no allegations as to the listing price, sale price, broker used, or type of brokerage
arrangement. Worse yet, it omits any allegations as to what commission Plaintiff offered or paid
for four of its five transactions. Plaintiff therefore fails to provide sufficient information regarding
its transactions or its claimed injury to state a claim under Florida’s fact pleading requirements,
despite Defendants’ criticism of these deficiencies in their pre-amendment motions. See
discussion infra Part I.D.
Finally, Plaintiff's FDUTPA claim likewise fails for multiple reasons. The claim is
expressly barred by the FDUTPA exemption relating to acts or practices involving the sale of real
estate by licensed persons. See§ 501.212(6), Fla. Stat. (2023). And even if the exemption did not
apply, Plaintiff failed again to plead the required elements of a FDUTPA claim, both because its
claim relies upon its deficient antitrust claim allegations and because Plaintiff fails to adequately
plead the basic elements of a FDUTPA claim. See discussion infra Part II.
Given that Plaintiff already has amended its complaint once in reaction to Defendants”
arguments, the Court should dismiss the Amended Complaint in its entirety with prejudice because
Plaintiff has demonstrated that it cannot cure the fundamental defects of its case.
RELEVANT FACTUAL BACKGROUND!
A. Real Estate Transactions (Selling and Buying the Home)
1. Real Estate Broker Transaction Services
Seller-brokers provide a “bundle of services” to connect their client (the seller) with
potential buyers and help their client sell its home at the best price. See Am. Compl. {ff 48, 59.
These services can range from posting the iconic “For Sale” sign, staging furniture and taking
pictures that will attract buyers’ interest in the house, advertising the property in digital and
traditional publications, holding open houses, and listing the property on a local MLS, to preparing
4 The facts discussed herein are taken from the Amended Complaint and exhibit thereto (“Ex. A”)
or from judicially-noticeable public information.
and presenting offers and counteroffers, negotiating sale terms, and otherwise facilitating the
consummation of the sale transaction. See generally id. 4946, 48, 59 55; Ex. A at 3.°
The Amended Complaint acknowledges that buyer-agents also provide a “bundle of
services” to help buyers identify and purchase properties that meet the buyer’s criteria, such as
cost, location, size, amenities, and layout (e.g., number of bedrooms). See id. 4] 59; Ex. A at 3.
Buyer-agents help buyers sift through the homes that are on MLSs or publicly advertised for sale
via websites, publications, and other real estate advertising methods. See, e.g., id. §§/2,49. Buyer-
agents typically will take their client (the buyer) to view potential homes, provide information
made available by the seller-broker, generate market analyses regarding comparable properties to
inform the buyer’s analysis and potential purchase offer, assist the buyer in creating the offer,
present offers and counteroffers to the seller-broker, facilitate the mortgage and inspection process,
and advise on purchase negotiations and contractual terms. See generally id. § 55; Ex. A at 3.
Such services typically are not compensated unless the buyer successfully purchases a home for
which the buyer-agent was the procuring cause. See id. 455; Ex. A at 3 (The buyer-agent’s
“TeJ]ntitlement to compensation is determined by the cooperating broker’s [i.e., buyer-agent’s]
performance as a procuring cause of the sale (or lease)”). In other words, the broker’s
compensation depends on the sale of the home.
5 When considering a motion to dismiss, “[a]ny exhibit attached to a pleading must be considered
a part thereof for all purposes.” Fla. R. Civ. P. 1.130(b); Age of Empire, Inc. v. Ocean Two Condo.
Ass'n, Inc., 367 So. 3d 1278, 1280 (Fla. 3d DCA 2023) (“In considering the motion to dismiss the
trial court was required to consider the exhibit (deposition) attached to and incorporated in the
amended complaint.”) (citation omitted). Courts must “assume all well-pleaded facts in the
complaint, and all exhibits attached to the complaint, are true.” Morali v. Mayan, 377 So. 3d 1182,
1184 (Fla. 4th DCA 2024) (citation omitted).
2. Sellers Compensate Real Estate Brokers for the Significant Value
Their Services Provide to Sellers
When a seller wants to sell its home, it “hires a seller-broker.”. Am. Compl. § 55. While
the seller broker may “quote[] commissions” to the home seller, the seller and broker ultimately
enter into a “listing agreement” that sets forth the price the seller agrees to pay for the seller-
broker’s services, i.e., the “commission,” as well as other terms related to the home sale, such as
listing price. Ex. A at 9 (defining listing agreements as a “contract between the seller(s) of the
property and the participating Broker”). A seller engages a seller-broker at the “outset of the
process.” Am. Compl. § 58. Both parties thus enter into this relationship without knowing whether
or when a buyer will be found, who that buyer will be, or what price the buyer will actually pay
for the seller’s property. As acknowledged by Plaintiff, the payment to the seller-broker is a
commission, meaning payment depends upon a sale. Jd. J] 54-55.
B. The Florida Real Estate Industry
Florida has the largest residential real estate industry in the country. It has hundreds of
thousands of real estate professionals engaging in hundreds of thousands of transactions per year.
Licensing and regulation of the real estate industry is overseen by the Florida Real Estate
Commission. See § 475.02, Fla. Stat. (2023). A real estate licensee in Florida may enter into a
brokerage relationship with a client as a “transaction broker” or as a “single agent,” or may choose
to have a “no brokerage” relationship. See § 475.278, Fla. Stat. (2023); Am. Compl. Ex. A at 10.
Each type of brokerage relationship is distinguishable based on the statutory duties owed to the
buyer or seller. See § 475.278, Fla. Stat. (2023).° Florida law presumes that all licensees are
° A transaction broker provides “limited representation to the buyer or seller, or both.” Am. Compl.
Ex. A at 10. The transaction broker’s duties include “dealing honestly and fairly, 9 6, accounting for
all funds,” “using skill, care and diligence in the transaction,” “disclosing all known facts that
materially affect the value of the residential property and are not readily observable to the buyer,”
and “presenting all offers and counteroffers in a timely manner.” § 475.278(2), Fla. Stat. (2023);
operating as transaction brokers unless a single agent relationship or no brokerage relationship is
established in writing. See id.; see also Ex. A at 10. Plaintiff ignores these Florida-specific
classifications and corresponding regulations, and instead grossly oversimplifies the industry by
referring only to “seller-brokers” and “buyer-agents” in the Amended Complaint. See, e.g., id. 44
6, 9, 48, 55. And Plaintiff still fails to identify the type of brokerage relationship it had with its
(unnamed) seller-broker for any of its alleged transactions. See id. {J 19-21.
Once licensed, Florida real estate professionals have the option to join real estate trade
associations. See, e.g., id. 22. There are “fifty-one local [Realtor] associations in Florida.” Id.
4/3.” A real estate professional in Florida who joins a local association also becomes a member of
the statewide association, Florida Realtors, as well as NAR. See id. §] 22, 43. These trade
associations provide significant benefits to their members, including training resources,
accreditation, practice resources, and insurance and risk management options. See, e.g., id. § 88.
Florida Realtors is registered under Florida law as a real estate school to teach continuing education
courses. See § 475.451, Fla. Stat. (2023).8
Am. Compl. Ex. A at 10. By comparison, a “single-agent” licensee owes a fiduciary duty to their
client “in addition to duties or obligations set forth in the listing agreement.” Ex. A at 10. The
additional duties identified include “loyalty, 99 6 confidentiality, 99 66 obedience,” and “full disclosure.”
§ 475.278(3), Fla. Stat. (2023). Finally, the no brokerage relationship owes the fewest duties to a
potential seller or buyer in order to facilitate the transaction. See § 475.278(4), Fla. Stat. (2023);
see also Am. Compl. Ex. A at 10.
7 These local associations include, for example, Amelia Island—Nassau County Association of
Realtors, the Central Panhandle Association of Realtors, the Miami Association of Realtors, the
Orlando Regional Realtors Association, and the Tallahassee Board of Realtors. See Am. Compl.
423.
* Florida Realtors holds an active Real Estate School License, issued by the Florida Department of
Business & Professional Regulations on June 29, 1989 with license number ZH45003. See
Request for Judicial Notice, Ex. 1 filed herewith. The Court may take judicial notice, and
Defendants hereby request that it do so, of this record pursuant to Section 90.202, Florida Statutes
(2023). See § 90.202(6), Fla. Stat. (2023) (“A court may take judicial notice of. . . [rjecords of
any court of this state or of any court of record of the United States or of any state, territory, or
jurisdiction of the United States.”); § 90.202(12), Fla. Stat. (2023) (“A court may take judicial
C. Pertinent Trade Association Policies
A key service that both seller-brokers and buyer-agents use to deliver their services to home
buyers and sellers is use of an MLS, “a database of properties listed for sale in a defined region.”
Am. Compl. {ff 2, 47-50, 55. Listing a property on an MLS is one of several ways that seller-
brokers advertise a property for sale and increase its exposure to buyer-agents and potential buyers.
See id. {§ 2, 47-50. Buyer-agents use an MLS to search for properties that meet their buyers’
criteria. See id. {{[ 47-50. Association members and non-members alike can participate in MLSs.
See Ex. A at 5-6.
The Amended Complaint mislabels the MLSs in Florida as the “Florida Realtor MLSs.”
Am. Compl. § 3. As it later recognizes, MLSs in Florida are owned and operated by local realtor
association(s), not defendant Florida Realtors. See id. 417. The Miami MLS, for example, is thus
subject to the Miami Association of Realtors’ policies. See Ex. A at 3. MLS policies typically
reflect the policies set forth in NAR’s Handbook on Multiple Listing Policy (“NAR Handbook”).
See, e.g., Am. Compl. {J 9, 53, 62, 65-66, 83-87; Ex. A at 3, 15.
MLS policies ensure transparency in real estate transactions. They serve as a “facility for
the orderly correlation and dissemination of listing information among the Participants so that
Participants may better serve their customers, clients and the public.” Ex. A at 3. They further
fair housing practices by ensuring “the widespread distribution of accurate property information
to all consumers.” Jd. They expressly promote competition among participants. See e.g., id. at
11, 20 (prohibiting “fix[ing], control[ling], or suggest[ing] the commissions or fees charged for
real estate brokerage services” and “fix[ing], control[ling], recommend[ing], suggest[ing], or
maintain[ing] the division of commissions or fees between cooperating Participants or between
notice of. . . [fJacts that are not subject to dispute because they are capable of accurate and ready
determination by resort to sources whose accuracy cannot be questioned.”).
Participants and non-participants”). Above all, they facilitate real estate transactions by making
the process for selling and buying homes more transparent, fair, and efficient. See id. at 3.
1. The Challenged Policy Regarding Offers of Compensation
Plaintiff challenges one particular disclosure policy—the MLS policy that a seller-broker
must transparently disclose its offer of compensation to buyer-agents when it lists a property on
an MLS. See Am. Compl. {fj 65-66; Ex. A at 28. Disclosure of the offer of compensation is
“necessary because cooperating participants have the right to know what their compensation will
be prior to commencing their efforts to sell.’ Ex. A at 28. The offer can be in the form of a
percentage of the transaction value or a set dollar amount. See Am. Compl. {§ 5, 66, 78. Nothing
in MLS or association guidance dictates that seller-broker commissions or offers of compensation
to buyer-agents must be set at a specific level, and the Amended Complaint does not (and could
not) allege otherwise. Seller-brokers are not required to “disclose [on the MLS] the amount of
total negotiated commission in [the] listing contract,” nor will an MLS “disclose in any way the
total commission negotiated between the seller and the listing [seller-]broker.” Ex. A at 29.
The offer of compensation disclosed on an MLS is just that: a unilateral offer. See Am.
Compl. 95, 9, 55(b), 65; Ex. A at 3, 28. Plaintiff contends that the “NAR rules expressly prohibit
the seller-broker from modifying the offer of compensation after an offer of purchase” and buyer-
agents from attempting to reduce their commission. Jd. § 83. But the MLS rules Plaintiff attached
to the Amended Complaint directly refute this contention. They expressly state that “nothing in
these MLS rules precludes a listing participant [seller-broker] and a cooperating participant
[buyer-agent], as a matter of mutual agreement, from modifying the cooperative compensation to
be paid in the event ofa successful transaction.” Ex. A at 29 (emphasis added). Disclosure of the
offer of compensation in the MLS listing also does not “preclude the listing broker from offering
any MLS participant compensation other than the compensation indicated on his listings as
10
published by the MLS, provided the listing broker informs the other broker in writing in advance
of their submitting an offer.” Jd.
D. The Parties
Plaintiffis a domestic for-profit corporation incorporated in the State of Florida. See id.
4 19. Plaintiff alleges that it sold five homes in Panama City, Florida, on February 1, 2021, May
12, 2021, November 17, 2021, March 31, 2022, and August 25, 2022. See id. These homes
allegedly were listed on the Central Panhandle MLS, one of dozens of local MLSs in Florida. See
id. J 3, 19. Plaintiff fails to append copies of any of the MLS listings or its listing agreements
related to these sales. Plaintiff alleges it paid 2.5% commission to the buyer’s agent and 2.5%
commission to the seller’s agent for one of its home sales, but does not allege any information as
to the commissions offered or paid for the other four transactions. See id. 21. The Amended
Complaint asserts generally that Plaintiff “paid supracompetitive rates for real estate services” and
that Plaintiff “would not have made an offer of compensation to buyer’s agents to attract potential
buyers in the first place” but for the “rules adopted by the Central Panhandle MLS.” Jd.
Plaintiff names sixteen real estate brokerage companies in Florida as defendants but does
not claim to have done business with any of them. See id. {J 1, 25-39. Each Broker Defendant is
alleged to have fewer than 4,000 real estate agents licensed in Florida. See id. §§ 25-39.
Combined, Broker Defendants represent only a small fraction of the hundreds of thousands of
licensed real estate professionals in Florida. See id.
The Amended Complaint names as a defendant Florida Realtors, a statewide real estate
trade association. See id. § 22. Plaintiff alleges that Florida Realtors operates MLSAdvantage, a
Florida-wide search engine for members to search the aggregated properties listed for sale on
participating local MLSs. See id. { 23. Plaintiff alleges that the Broker Defendants are “members
of Florida Realtors and one or more of the above local realtor associations and their affiliated
11
MLSs.” Id. 424. According to Plaintiff, Broker Defendants have “implement[ed] policies,
manuals, and contracts that require their agents to comply with NAR rules” and have served in
leadership positions with Florida Realtors, local associations, and MLSs. Jd. 4 90-98.
The Amended Complaint also references, without actually naming, innumerable “co-
conspirators,” including local realtor associations, MLSs, Broker Defendants’ employees and
agents, and “other brokers” that have used MLSs. Jd. §{] 40-42.
LEGAL STANDARD
This Court requires fact pleading. See Fla. R. Civ. P. 1.110(b). “Florida is a fact-pleading
jurisdiction. . . . Florida’s pleading rule forces counsel to recognize the elements of their cause of
action and determine whether they have or can develop the facts necessary to support it, which
avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.” Horowitz
v. Laske, 855 So. 2d 169, 172-73 (Fla. Sth DCA 2003) (citing Cont’ Baking Co. v. Vincent, 634
So. 2d 242, 244 (Fla. Sth DCA 1994)). On a motion to dismiss, the court must determine “whether
the complaint alleges sufficient ultimate facts, which under any theory of law, would entitle a
plaintiff
to the relief sought.” Plastiquim, S.A. v. Odebrecht Constr., Inc., 337 So. 3d 1270, 1273
(Fla. 3d DCA 2022) (citation omitted). “While [the court] must accept the facts alleged as true
and make all reasonable inferences in favor of the pleader, conclusory allegations are
insufficient.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018) (citation
omitted).
A. The Florida Antitrust Act
To state a claim under the Florida Antitrust Act (“FAA”), a plaintiff must allege sufficient
facts to establish: (i) a contract, combination or conspiracy;? (ii) in restraint of trade; (iii) in Florida.
° The statutory language “contract, combination, or conspiracy” requires a plaintiffto show some
form of concerted action between two or more parties. See, e.g., Am. Needle, Inc. v. Nat’l Football
12
See § 542.18, Fla. Stat. (2023); United Am. Corp. v. Bitmain, Inc., 530 F. Supp. 3d 1241, 1255
(S.D. Fla. 2021) (citation omitted). This FAA language mirrors federal antitrust law. See 15
U.S.C. § 1 (the “Sherman Act”). Courts ruling on alleged violations of the FAA must give “due
consideration and great weight . . . to the interpretations of the federal courts relating to comparable
federal antitrust statutes.” § 542.32, Fla. Stat. (2023); see All Care Nursing Serv., Inc. v. High
Tech Staffing Servs., Inc., 135 F.3d 740, 745 n.11 (11th Cir. 1998) (“Federal and Florida antitrust
laws are analyzed under the same rules and case law.”) (citing § 542.32, Fla. Stat. (2023)).
The FAA’s directive to consider federal authorities includes the seminal Supreme Court
decision in Bell Atlantic Corp. v. Twombly, which established the standard of review at the motion
to dismiss stage for an antitrust conspiracy claim. 550 U.S. 544, 558 (2007); see, e.g., MYD Marine
Distrib., Inc. v. Int'l Paint Ltd., 76 So. 3d 42, 47 n.4 (Fla. 4th DCA 2011) (“Florida courts should
look to Twombly in determining whether an agreement in violation of the Florida Antitrust law
can be reasonably inferred from the alleged facts.”). In Twombly, the Supreme Court ruled that
the “crucial question” courts must consider at the motion to dismiss stage “is whether the
challenged anticompetitive conduct ‘stem[s] from independent decision or from an agreement,
tacit or express.” 550 U.S. at 553.
The Supreme Court further ruled that factual allegations that are equally consistent with a
wide swath of lawful and independent business conduct as with an anticompetitive conspiracy are
insufficient as a matter of law. See id. at 553-57. Plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” MYD Marine Distrib., Inc., 76 So. 3d at 46
n.4 (citation omitted) (analyzing alleged violation of Florida Antitrust Act under Twombly). A
League, 560 U.S. 183, 190 (2010) (“The meaning of the term ‘contract, combination . ., OF
conspiracy’ is informed by the ‘basic distinction’ in the Sherman Act ‘between concerted and
independent action’ that distinguishes § 1 of the Sherman Act from § 2.”) (quoting Copperweld
Corp. v. Indep. Tube Corp., 467 U.S. 752, 767 (1984)).
13
conspiracy claim must be “plausible on its face” and the plaintiff must plead sufficient factual
allegations to “allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
570). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.”” Jd. (citing Twombly, 550 U.S. at 555). Accordingly, Florida
courts have affirmed dismissals in reliance on federal case law that deemed plaintiffs antitrust
claim to be implausible or “speculative.” See, e.g., Okeelanta Power Ltd. P’ship v. Fla. Power &
Light Co., 766 So. 2d 264, 267-68 (Fla. 4th DCA 2000).
To plead the first element of an FAA claim—contract, combination, or conspiracy—a
plaintiff must allege an unlawful agreement among defendants, i.e., “a unity of purpose or a
common design and understanding, or a meeting of minds in an unlawful arrangement.” Am.
Tobacco Co. v. United States, 328 U.S. 781, 810 (1946). A plaintiff can allege an unlawful
agreement in two ways. First, a plaintiff can rely on allegations of “[d]irect evidence,” i.e.
evidence that is “explicit and does not require courts to make inferences to find an agreement.”
United Am. Corp., 530 F. Supp. 3d at 1258, n.17 (citation omitted) (identifying “a recorded phone
call in which two competitors agree to fix prices at a certain level” as an example of direct evidence
of agreement). Plaintiff alleges no direct evidence in the Amended Complaint.
Alternatively, a plaintiff can allege “circumstantial evidence” that “raises a suggestion of
a preceding agreement.” Twombly, 550 U.S. at 556-57. Plaintiffs will often point to defendants
engaging in parallel business behavior, known as “parallel conduct,” as suggestive that defendants
have reached an agreement. Jd. at 552. But allegations that defendants engaged in parallel conduct
are insufficient, standing alone, because parallel conduct might be “consistent with conspiracy, but
just as much in line with a wide swath of rational and competitive business strategy unilaterally
14
prompted by common perceptions of the market.” /d. at 554. In other words, even if defendants
are alleged to have engaged in parallel behavior, a court has “no basis for inferring a prior
agreement” from such behavior if each company “would rationally and independently want to do
precisely that.” Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d
1249, 1267 (11th Cir. 2019) (en banc). A plaintiff thus must offer additional facts that make the
parallel conduct “more probative of conspiracy than of conscious parallelism,” i.e., a common
reaction of companies to the same market factors based on each company acting in its own
unilateral interest. /d.
Preview
Filing # 196840433 E-Filed 04/23/2024 07:35:31 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA COMPLEX BUSINESS LITIGATION DIVISION PARKER HOLDING GROUP INC., Plaintiff, CASE NO.: 2023-27749-CA-01 Vv, FLORIDA ASSOCIATION OF REALTORS, THE KEYES COMPANY, LPT REALTY, LLC, CHARLES RUTENBERG REALTY, INC., CHARLES RUTENBERG REALTY — ORLANDO, LLC, UNITED REALTY GROUP, INC, THE K COMPANY REALTY, LLC, FLORIDA HOMES REALTY & MORTGAGE LIMITED LIABILITY COMPANY, DALTON WADE, INC., AVANTI WAY REALTY, LLC, MVP REALTY ASSOCIATES LLC, FLORIDA REALTY OF MIAMI CORP., LIFESTYLE INTERNATIONAL REALTY LLC, WATSON REALTY CORP., PREMIERE PLUS REALTY CO., FUTURE HOME REALTY, INC., MICHAEL SAUNDERS & COMPANY, Defendants. DEFENDANTS’ JOINT MOTION TO DISMISS THE AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW TABLE OF CONTENTS Page PRELIMINARY STATEMENT RELEVANT FACTUAL BACKGROUND A Real Estate Transactions (Selling and Buying the Home) 1 Real Estate Broker Transaction Services 2 Sellers Compensate Real Estate Brokers for the Significant Value Their Services Provide to Sellers. The Florida Real Estate Industry Pertinent Trade Association Policies 1 The Challenged Policy Regarding Offers of Compensation. 10 D. The Parties 11 LEGAL STANDARD. 12 A The Florida Antitrust Ac 12 B The Florida Deceptive and Unfair Trade Practices Act 16 ARGUMENT 17 I THE COURT SHOULD DISMISS COUNT I WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UNDER THE FLORIDA ANTITRUST ACT 17 A The Court Should Dismiss Plaintiff's FAA Claim Because the Amended Complaint Fails to Plausibly Allege an Agreement Among Defendants and Innumerable Asserted Co-Conspirators 18 1 The Amended Complaint’s Allegations Regarding the Alleged Adoption of, or Compliance with, Trade Association Practices Do Not Support an Inference of Conspiracy 20 The Amended Complaint’s Contradictory Allegations Fail to Establish Defendants’ “Control” of the MLS Rules.. 22 Broker Defendants’ Alleged Conduct Is Consistent with Unilateral Self-Interest, Not Indicative of Conspiracy 25 The Court Should Dismiss Plaintiff's FAA Claim Because the Amended Complaint Fails to Allege a Plausible Relevant Product or Geographic Market. 28 1 The Amended Complaint Fails to Adequately Allege a Product Market Because the Two-Sided Market for Home Sale Transactions Is the Only Plausible Market Here. 29 The Amended Complaint Also Fai to Allege a Plausible Geographic Market... 33 The Court Should Dismiss Plaintiff's FAA Claim Because the Amended Complaint Fails to Plausibly Allege That Defendants’ Conduct Caused Harm in A Relevant Market 34 1 The Amended Complaint Fails to Allege Anticompetitive Effects on Real Estate Transactions 35 The Amended Complaint Ignores That Sellers Benefit from Offering to Pay Buyer-Agents’ Commission and Fails to Allege Harm to Buyers. 36 Plaintiff Fails to Plausibly Allege It Was Harmed When It Agreed to the Terms of Its Broker’s Commissions 37 D. The Court Should Dismiss Plaintiff's FAA Claim Because the Amended Complaint Fails to Allege Facts Establishing Plaintiff's Standing. 41 Il. THE COURT SHOULD DISMISS COUNT II WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UNDER THE FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT. 43 A The Alleged Conduct Is Exempt from FDUTPA Under Its Plain Language 43 B The Amended Complaint Fails to Plead a Viable FDUTPA Claim 45 III. DISMISSAL WITH PREJUDICE IS APPROPRIATE BECAUSE PLAINTIFF CANNOT CURE ITS COMPLAINT’S DEFICIENCIES 47 CONCLUSION 49 il TABLE OF AUTHORITIES Page(s) Cases Age of Empire, Inc. v. Ocean Two Condo. Ass'n, Inc., 367 So. 3d 1278 (Fla. 3d DCA 2023) Alhallag v. Radha Soami Trading, LLC, 484 F. App’x 293 (11th Cir. 2012) 47 All Care Nursing Serv., Inc. v. High Tech St ‘ing Servs., Inc. 135 F.3d 740 (11th Cir. 1998) 13 Alvarez v. DeAguirre, 395 So. 2d 213 (Fla. 3d DCA 1981) 47 Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) 20 Am. Needle, Inc. v. Nat'l Football League, 560 U.S. 183 (2010) 12 Am. Tobacco Co. v. United States, 328 U.S. 781 (1946) 14 Angelo v. Parker, 275 So. 3d 752 (Fla. Ist DCA 2019) 16, 45 Ashcroft v. Iqbal, 556 U.S. 662 (2009) 14, 41 Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707 (11th Cir. 2020) 41 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) passim Bolinger v. First Multiple Listing Serv., Inc., 838 F. Supp. 2d 1340 (N.D. Ga. 2012) 21, 27 Buccaneer Energy (USA) Inc. v. Gunnison Energy Corp., 846 F.3d 1297 (10th Cir. 2017) 28 Buffalo Trump Tower One, LLC v. TRG Sunny Isles V, Ltd., No. 08-21857-CIV, 2009 WL 10667160 (S.D. Fla. Mar. 19, 2009) 44, 45 iil Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984) 28 Chubirko v. Better Bus. Bureau ofS. Piedmont, Inc., 763 F. Supp. 2d 759 (W.D.N.C. 2011) 24 City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548 (11th Cir. 1998) 26 Cont’l Baking Co. v. Vincent, 634 So. 2d 242 (Fla. Sth DCA 1994) 12 Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) 15 Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752 (1984) 13 Coronavirus Rep. v. Apple Inc., No. 21-cv-05567, 2021 WL 5936910 (N.D. Cal. Nov. 30, 2021), it'd 84 F.4th 948 (9th Cir. 2023) 32, 33,35 In re Fla. Cement & Concrete Antitrust Litig., 746 F. Supp. 2d 1291 (S.D. Fla. 2010) 17, 25, 46 FTC v. Qualcomm Inc., 969 F.3d 974 (9th Cir. 2020) 28 Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc., 629 So. 2d 252 (Fla. 3d DCA 1993) 43 Horowitz v. Laske, 855 So. 2d 169 (Fla. Sth DCA 2003) 12, 41 In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010). 21 Jacobs v. Tempur-Pedic Int’l., Inc., 626 F.3d 1327 (11th Cir. 2010) passim Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897 (N.D. Cal. 2019) 27 Kelsey K. v. NFL Enters., LLC, 757 F. App’x 524 (9th Cir. 2018) 19, 21, 24 Kendall v. Visa USA, Inc., 518 F.3d 1042 (9th Cir. 2008) 21 Iv Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538 (11th Cir. 1996) 15, 16, 18 Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100 (Fla. Ist DCA 1996) 17, 45 Maroone Chevrolet, LLC v. Alvarado, 344 So. 3d 459 (Fla. 4th DCA 2022) 46 McIntyre v. Marriott Ownership Resorts, Inc., No. 13-80184-CIV, 2013 WL 12212640 (S.D. Fla. Dec. 10, 2013) 43, 45 Morali v. Mayan, 377 So. 3d 1182 (Fla. 4th DCA 2024) Murga v. United Prop. & Cas. Ins. Co., 941 So. 2d 482 (Fla. 3d DCA 2006) 47, 48 MYD Marine Distrib., Inc. v. Int’l Paint Ltd., 76 So. 3d 42 (Fla. 4th DCA 2011) 13 Nat'l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679 (1978) 16 Ohio v. Am. Express Co., 585 U.S. 529 (2018) passim Okeelanta Power Ltd. P’ship v. Fla. Power & Light Co., 766 So. 2d 264 (Fla. 4th DCA 2000) 14, 41, 43 In re Online Travel Co. (OTC) Hotel Booking Antitrust Litig. 997 F. Supp. 2d 526 (N.D. Tex. 2014) 25 Parker Auto Body Inc. v. State Farm Mut. Auto. Ins. Co. 171 F. Supp. 3d 1274 (M.D. Fla. 2016) 41 Parts Depot Co., L.P. v. Fla. Auto Supply, Inc., 669 So. 2d 321 (Fla. 4th DCA 1996)... 28 Peters v. Keyes Co., No. 10-60162-CIV, 2010 WL 1645095 (S.D. Fla. Apr. 21, 2010) 44 Plastiquim, S.A. v. Odebrecht Constr., Inc., 337 So. 3d 1270 (Fla. 3d DCA 2022) 12 QO Club Resort & Residences Condo. Ass'n, Inc. v. Q Club Hotel, LLC, No. 09-CV-60911, 2010 WL 11454483 (S.D. Fla. Jan. 6, 2010) 28, 33 OSGI Inc. v. IBM Glob. Fin., No. 11-CV-80880, 2012 WL 13019046 (S.D. Fla. July 31, 2012). 17, 39, 45 Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249 (11th Cir. 2019) (en banc) passim Rigby v. Philip Morris USA, Inc., No. CV 513-110, 2015 WL 1275412 (S.D. Ga. Mar. 19, 2015) 26 Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178 (Fla. 3d DCA 2010) 46 SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412 (4th Cir. 2015) 21 Sea Shelter IV, LLC v. TRG Sunny Isles V, Ltd., No. 08-21767-CIV, 2009 WL 692469 (S.D. Fla. Mar. 17, 2009) 45 Sentry Data Sys. v. CVS Health, 316 F. Supp. 1279 (S.D. Fla. 2018) 33 Smith v. Smith, 232 So. 3d 509 (Fla. Ist DCA 2017) 38 Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376 F.3d 1065 (11th Cir. 2004) 16, 24, 34, 48 Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 1635931 (N.D. Cal. June 5, 2009) 47, 48 Stein v. BBX Capital Corp., 241 So. 3d 874 (Fla. 4th DCA 2018) 12 Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566 (11th Cir. 1991) 40 United Am. Corp. v. Bitmain, Inc., 530 F. Supp. 3d 1241 (S.D. Fla. 2021) 13, 14,19 Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003) 25, 26 Statutes 15 U.S.C. § 1 passim vi Fla. Stat. § 90.202 (2023) Fla. Stat. § 475.02 (2023) Fla. Stat. § 475.25 (2023) 44, 45 Fla. Stat. § 475.42 (2023) 44 Fla. Stat. § 475.278 (2023) passim Fla. Stat. § 475.451 (2023) Fla. Stat. § 501.204 (2023) 16 Fla. Stat. § 501.212(6) (2023) passim Fla. Stat. § 501.2105 (2023) Fla. Stat. § 542.18 (2023) 13 Fla. Stat. § 542.22 (2023) Fla. Stat. § 542.32 (2023) 13 Other Authorities David S. Evans & Michael Noel, Defining Antitrust Markets When Firms Operate Two-Sided Platforms, Colum. Bus. L. Rev 667 (2005) 31 David S. Evans & Richard Schmalensee, Markets with Two-Sided Platforms, | Issues in Competition L. & Pol’y 667 (2008) 30 David S. Evans, The Antitrust Economics of Multi-Sided Platform Markets, 20 Yale J. on Reg. 325 (2003) 30 Fla. R. Civ. P. 1.110(b) 1,12 Fla. R. Civ. P. 1.130(b) vii Defendants Florida Association of Realtors, The Keyes Company, LPT Realty, LLC, Charles Rutenberg Realty, Inc., Charles Rutenberg Realty — Orlando, LLC, United Realty Group, Inc., The K Company Realty, LLC, Florida Homes Realty & Mortgage Limited Liability Company, Dalton Wade, Inc., Avanti Way Realty, LLC, MVP Realty Associates LLC, Florida Realty of Miami Corp., Lifestyle International Realty LLC, Watson Realty Corp., Premiere Plus Realty Co., Future Home Realty, Inc., and Michael Saunders & Company (collectively, “Defendants”), by and through their respective counsel, pursuant to Fla. R. Civ. P. 1.110(b), hereby file this Joint Motion to Dismiss Plaintiff's First Amended Class Action Complaint (the “Amended Complaint”)! Defendants are entitled to attorney’s fees and costs pursuant to: (i) § 501.2105, Fla. Stat. (2023) and (ii) § 542.22, Fla. Stat. (2023). See Stockman v. Downs, 573 So. 2d 835, 837- 38 (Fla. 1991). PRELIMINARY STATEMENT Even after amending its complaint following review of Defendants’ motions to dismiss, Parker Holding Group, Inc. (“Plaintiff”) still fails to allege any viable claims. The Amended Complaint continues to challenge longstanding practices regarding disclosure of real estate broker compensation while wholly ignoring the inextricable connection between broker services and the underlying home sale transaction. In doing so it runs afoul of fundamental principles for pleading an antitrust claim. Plaintiff has now had two bites at the apple. As demonstrated below, the Court should dismiss this case with prejudice as a matter of law. At the crux of this case are residential real estate transactions—the buying and selling of homes in Florida. Sellers want to sell their homes for the highest price they can command.” The ' Defendants expressly preserve, and do not waive, arbitration rights as to unnamed class members. ? Defendants’ references to the “highest price” encompass other seller considerations, such as timing and method of payment (e.g., cash versus financing). law of supply and demand, and common sense, dictate that the higher the number of potential buyers, the higher the price a property will command. However, most sellers do not have the expertise or resources to maximize the number of qualified buyers or to handle all aspects of the sale process—from putting the house on the market through closing—without professional assistance.> The services provided by brokers and agents in facilitating home sales are thus a fundamental aspect of Florida’s residential real estate market. And completed home sales typically are the only way that brokers earn compensation for the services they provide. Plaintiff claims that defendants Florida Association of Realtors (“Florida Realtors”) and sixteen Florida real estate brokers (collectively, “Broker Defendants”) violated the Florida Antitrust Act (“FAA”) and the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) by agreeing—with tens of thousands of unnamed co-conspirators—to artificially inflate the commissions that home sellers pay brokers in Florida. Plaintiff's claims hinge on the practice of Multiple Listing Services (“MLSs”) in Florida—which are not Defendants—to require that a seller-broker transparently disclose, in the MLS listing, the offer of compensation that it will make to a buyer-agent who procures a successful buyer. Plaintiff fails to allege sufficient facts for the Court to find such an agreement plausibly exists. The Amended Complaint contains no facts constituting direct evidence of an unlawful > The real estate professionals in Florida referenced in the Amended Complaint are: “agents” and “brokers”. Am. Compl. §j 46. “Agent” describes an individual who is “licensed by the state to help people buy and sell homes.” Jd. “Broker” is a real estate agent “who obtain[s] further education and [is] licensed by the state to start their own brokerage firm.” Jd. “Realtor” is a federally registered collective membership mark that identifies a real estate professional who is a member of the National Association of Realtors (“NAR”). Plaintiff's list does not encompass all terms used to identify the various types of real estate licensees (see, e.g., § 475.278, Fla. Stat. (2023)), but for purposes of this motion Defendants will utilize Plaintiff's terminology: a “seller- broker” is the real estate licensee (broker or agent) that works with a home seller, and a “buyer- agent” is the real estate licensee (broker or agent) that works with a home buyer. When the distinction is not germane, the terms “broker” and “agent” are used interchangeably. agreement among Defendants. It instead declares a “conspiracy” by pointing to (i) Defendants” adoption of trade association guidance put in place, as Plaintiff acknowledges, decades ago by non-party National Association of Realtors (“NAR”), and (ii) Defendants’ individual choices to adhere to MLS rules, which Plaintiff acknowledges Broker Defendants must follow to list properties for sale in an MLS database. Plaintiff attempts to bolster its contention of an industry- wide agreement with a handful of allegations about a small number of Broker Defendants’ involvement in local Realtor associations, MLSs, or Florida Realtors. But all of this alleged conduct is in each Defendant’s independent self-interest and so, as a matter of law, is not suggestive ofa conspiracy. Plaintiff’s allegations thus fall short of what is required to adequately allege an antitrust conspiracy among the named Defendants (let alone a conspiracy that also includes countless thousands of supposed unnamed co-conspirators). See discussion infra Part LA. An antitrust plaintiff also must plead facts establishing a relevant market in which Defendants’ conduct restrains competition. Here, Plaintiff's FAA claim fails because its allegations of a supposed market for the “bundle of broker services” ignore the need for a consummated home sale and thus the actual relevant market for home sales. The Supreme Court requires that in assessing antitrust claims concerning markets like real estate, courts must analyze the impact of alleged anticompetitive conduct on the relevant market as a whole. See Ohio v. Am. Express Co., 585 U.S. 529, 5540 (2018) (hereinafter AmEx). Here, that relevant market is two- sided, necessarily encompassing the underlying real estate transaction, including impacts on both the seller and the buyer. The Amended Complaint, however, focuses exclusively on sellers assertedly overpaying for the “bundle of services” that brokers provide. It does not consider the underlying home sale transaction, which is the very reason why the seller pays for those services. And, the Amended Complaint alleges no plausible geographic market, merely alleging in one conclusory pronouncement that there are numerous unspecified geographic markets throughout the State of Florida. Because Plaintiff does not allege a plausible relevant product or geographic market, its Amended Complaint fails to state a claim under the FAA. See discussion infra Part IB. Plaintiff likewise does not, and cannot, plausibly allege any anticompetitive effects. The omission of consideration of the home sales market is again fundamental and fatal. Sellers want to sell their home for as much as possible. They want to attract as many potential buyers as possible. One way that sellers attract buyer-agents and buyers to their property is by offering to pay transaction-related fees, such as broker commissions. Yet Plaintiff's nonsensical theory of harm is that the very conduct that facilitates the sale of the property and thus benefits the seller is actually what harms the seller. See discussion infra Part I.C. Even apart from the failure to account for home sale transactions, Plaintiff cannot plausibly contend that the commissions it paid were higher than they would have been in the absence of the challenged MLS disclosure practice. Plaintiff nowhere alleges that it was unable to negotiate with its chosen seller-broker when hiring it, including negotiating any offer of compensation to be offered to buyer-agents. The Amended Complaint also ignores the pro-competitive, pro-consumer reasons for the challenged MLS disclosure practices (e.g., to ensure transparency in real estate transactions and facilitate home sales). See discussion infra Part LC. Plaintiff also does not adequately allege that it has standing to bring its antitrust claim. The Amended Complaint provides only minimal information regarding Plaintiff's transactions, providing no allegations as to the listing price, sale price, broker used, or type of brokerage arrangement. Worse yet, it omits any allegations as to what commission Plaintiff offered or paid for four of its five transactions. Plaintiff therefore fails to provide sufficient information regarding its transactions or its claimed injury to state a claim under Florida’s fact pleading requirements, despite Defendants’ criticism of these deficiencies in their pre-amendment motions. See discussion infra Part I.D. Finally, Plaintiff's FDUTPA claim likewise fails for multiple reasons. The claim is expressly barred by the FDUTPA exemption relating to acts or practices involving the sale of real estate by licensed persons. See§ 501.212(6), Fla. Stat. (2023). And even if the exemption did not apply, Plaintiff failed again to plead the required elements of a FDUTPA claim, both because its claim relies upon its deficient antitrust claim allegations and because Plaintiff fails to adequately plead the basic elements of a FDUTPA claim. See discussion infra Part II. Given that Plaintiff already has amended its complaint once in reaction to Defendants” arguments, the Court should dismiss the Amended Complaint in its entirety with prejudice because Plaintiff has demonstrated that it cannot cure the fundamental defects of its case. RELEVANT FACTUAL BACKGROUND! A. Real Estate Transactions (Selling and Buying the Home) 1. Real Estate Broker Transaction Services Seller-brokers provide a “bundle of services” to connect their client (the seller) with potential buyers and help their client sell its home at the best price. See Am. Compl. {ff 48, 59. These services can range from posting the iconic “For Sale” sign, staging furniture and taking pictures that will attract buyers’ interest in the house, advertising the property in digital and traditional publications, holding open houses, and listing the property on a local MLS, to preparing 4 The facts discussed herein are taken from the Amended Complaint and exhibit thereto (“Ex. A”) or from judicially-noticeable public information. and presenting offers and counteroffers, negotiating sale terms, and otherwise facilitating the consummation of the sale transaction. See generally id. 4946, 48, 59 55; Ex. A at 3.° The Amended Complaint acknowledges that buyer-agents also provide a “bundle of services” to help buyers identify and purchase properties that meet the buyer’s criteria, such as cost, location, size, amenities, and layout (e.g., number of bedrooms). See id. 4] 59; Ex. A at 3. Buyer-agents help buyers sift through the homes that are on MLSs or publicly advertised for sale via websites, publications, and other real estate advertising methods. See, e.g., id. §§/2,49. Buyer- agents typically will take their client (the buyer) to view potential homes, provide information made available by the seller-broker, generate market analyses regarding comparable properties to inform the buyer’s analysis and potential purchase offer, assist the buyer in creating the offer, present offers and counteroffers to the seller-broker, facilitate the mortgage and inspection process, and advise on purchase negotiations and contractual terms. See generally id. § 55; Ex. A at 3. Such services typically are not compensated unless the buyer successfully purchases a home for which the buyer-agent was the procuring cause. See id. 455; Ex. A at 3 (The buyer-agent’s “TeJ]ntitlement to compensation is determined by the cooperating broker’s [i.e., buyer-agent’s] performance as a procuring cause of the sale (or lease)”). In other words, the broker’s compensation depends on the sale of the home. 5 When considering a motion to dismiss, “[a]ny exhibit attached to a pleading must be considered a part thereof for all purposes.” Fla. R. Civ. P. 1.130(b); Age of Empire, Inc. v. Ocean Two Condo. Ass'n, Inc., 367 So. 3d 1278, 1280 (Fla. 3d DCA 2023) (“In considering the motion to dismiss the trial court was required to consider the exhibit (deposition) attached to and incorporated in the amended complaint.”) (citation omitted). Courts must “assume all well-pleaded facts in the complaint, and all exhibits attached to the complaint, are true.” Morali v. Mayan, 377 So. 3d 1182, 1184 (Fla. 4th DCA 2024) (citation omitted). 2. Sellers Compensate Real Estate Brokers for the Significant Value Their Services Provide to Sellers When a seller wants to sell its home, it “hires a seller-broker.”. Am. Compl. § 55. While the seller broker may “quote[] commissions” to the home seller, the seller and broker ultimately enter into a “listing agreement” that sets forth the price the seller agrees to pay for the seller- broker’s services, i.e., the “commission,” as well as other terms related to the home sale, such as listing price. Ex. A at 9 (defining listing agreements as a “contract between the seller(s) of the property and the participating Broker”). A seller engages a seller-broker at the “outset of the process.” Am. Compl. § 58. Both parties thus enter into this relationship without knowing whether or when a buyer will be found, who that buyer will be, or what price the buyer will actually pay for the seller’s property. As acknowledged by Plaintiff, the payment to the seller-broker is a commission, meaning payment depends upon a sale. Jd. J] 54-55. B. The Florida Real Estate Industry Florida has the largest residential real estate industry in the country. It has hundreds of thousands of real estate professionals engaging in hundreds of thousands of transactions per year. Licensing and regulation of the real estate industry is overseen by the Florida Real Estate Commission. See § 475.02, Fla. Stat. (2023). A real estate licensee in Florida may enter into a brokerage relationship with a client as a “transaction broker” or as a “single agent,” or may choose to have a “no brokerage” relationship. See § 475.278, Fla. Stat. (2023); Am. Compl. Ex. A at 10. Each type of brokerage relationship is distinguishable based on the statutory duties owed to the buyer or seller. See § 475.278, Fla. Stat. (2023).° Florida law presumes that all licensees are ° A transaction broker provides “limited representation to the buyer or seller, or both.” Am. Compl. Ex. A at 10. The transaction broker’s duties include “dealing honestly and fairly, 9 6, accounting for all funds,” “using skill, care and diligence in the transaction,” “disclosing all known facts that materially affect the value of the residential property and are not readily observable to the buyer,” and “presenting all offers and counteroffers in a timely manner.” § 475.278(2), Fla. Stat. (2023); operating as transaction brokers unless a single agent relationship or no brokerage relationship is established in writing. See id.; see also Ex. A at 10. Plaintiff ignores these Florida-specific classifications and corresponding regulations, and instead grossly oversimplifies the industry by referring only to “seller-brokers” and “buyer-agents” in the Amended Complaint. See, e.g., id. 44 6, 9, 48, 55. And Plaintiff still fails to identify the type of brokerage relationship it had with its (unnamed) seller-broker for any of its alleged transactions. See id. {J 19-21. Once licensed, Florida real estate professionals have the option to join real estate trade associations. See, e.g., id. 22. There are “fifty-one local [Realtor] associations in Florida.” Id. 4/3.” A real estate professional in Florida who joins a local association also becomes a member of the statewide association, Florida Realtors, as well as NAR. See id. §] 22, 43. These trade associations provide significant benefits to their members, including training resources, accreditation, practice resources, and insurance and risk management options. See, e.g., id. § 88. Florida Realtors is registered under Florida law as a real estate school to teach continuing education courses. See § 475.451, Fla. Stat. (2023).8 Am. Compl. Ex. A at 10. By comparison, a “single-agent” licensee owes a fiduciary duty to their client “in addition to duties or obligations set forth in the listing agreement.” Ex. A at 10. The additional duties identified include “loyalty, 99 6 confidentiality, 99 66 obedience,” and “full disclosure.” § 475.278(3), Fla. Stat. (2023). Finally, the no brokerage relationship owes the fewest duties to a potential seller or buyer in order to facilitate the transaction. See § 475.278(4), Fla. Stat. (2023); see also Am. Compl. Ex. A at 10. 7 These local associations include, for example, Amelia Island—Nassau County Association of Realtors, the Central Panhandle Association of Realtors, the Miami Association of Realtors, the Orlando Regional Realtors Association, and the Tallahassee Board of Realtors. See Am. Compl. 423. * Florida Realtors holds an active Real Estate School License, issued by the Florida Department of Business & Professional Regulations on June 29, 1989 with license number ZH45003. See Request for Judicial Notice, Ex. 1 filed herewith. The Court may take judicial notice, and Defendants hereby request that it do so, of this record pursuant to Section 90.202, Florida Statutes (2023). See § 90.202(6), Fla. Stat. (2023) (“A court may take judicial notice of. . . [rjecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.”); § 90.202(12), Fla. Stat. (2023) (“A court may take judicial C. Pertinent Trade Association Policies A key service that both seller-brokers and buyer-agents use to deliver their services to home buyers and sellers is use of an MLS, “a database of properties listed for sale in a defined region.” Am. Compl. {ff 2, 47-50, 55. Listing a property on an MLS is one of several ways that seller- brokers advertise a property for sale and increase its exposure to buyer-agents and potential buyers. See id. {§ 2, 47-50. Buyer-agents use an MLS to search for properties that meet their buyers’ criteria. See id. {{[ 47-50. Association members and non-members alike can participate in MLSs. See Ex. A at 5-6. The Amended Complaint mislabels the MLSs in Florida as the “Florida Realtor MLSs.” Am. Compl. § 3. As it later recognizes, MLSs in Florida are owned and operated by local realtor association(s), not defendant Florida Realtors. See id. 417. The Miami MLS, for example, is thus subject to the Miami Association of Realtors’ policies. See Ex. A at 3. MLS policies typically reflect the policies set forth in NAR’s Handbook on Multiple Listing Policy (“NAR Handbook”). See, e.g., Am. Compl. {J 9, 53, 62, 65-66, 83-87; Ex. A at 3, 15. MLS policies ensure transparency in real estate transactions. They serve as a “facility for the orderly correlation and dissemination of listing information among the Participants so that Participants may better serve their customers, clients and the public.” Ex. A at 3. They further fair housing practices by ensuring “the widespread distribution of accurate property information to all consumers.” Jd. They expressly promote competition among participants. See e.g., id. at 11, 20 (prohibiting “fix[ing], control[ling], or suggest[ing] the commissions or fees charged for real estate brokerage services” and “fix[ing], control[ling], recommend[ing], suggest[ing], or maintain[ing] the division of commissions or fees between cooperating Participants or between notice of. . . [fJacts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”). Participants and non-participants”). Above all, they facilitate real estate transactions by making the process for selling and buying homes more transparent, fair, and efficient. See id. at 3. 1. The Challenged Policy Regarding Offers of Compensation Plaintiff challenges one particular disclosure policy—the MLS policy that a seller-broker must transparently disclose its offer of compensation to buyer-agents when it lists a property on an MLS. See Am. Compl. {fj 65-66; Ex. A at 28. Disclosure of the offer of compensation is “necessary because cooperating participants have the right to know what their compensation will be prior to commencing their efforts to sell.’ Ex. A at 28. The offer can be in the form of a percentage of the transaction value or a set dollar amount. See Am. Compl. {§ 5, 66, 78. Nothing in MLS or association guidance dictates that seller-broker commissions or offers of compensation to buyer-agents must be set at a specific level, and the Amended Complaint does not (and could not) allege otherwise. Seller-brokers are not required to “disclose [on the MLS] the amount of total negotiated commission in [the] listing contract,” nor will an MLS “disclose in any way the total commission negotiated between the seller and the listing [seller-]broker.” Ex. A at 29. The offer of compensation disclosed on an MLS is just that: a unilateral offer. See Am. Compl. 95, 9, 55(b), 65; Ex. A at 3, 28. Plaintiff contends that the “NAR rules expressly prohibit the seller-broker from modifying the offer of compensation after an offer of purchase” and buyer- agents from attempting to reduce their commission. Jd. § 83. But the MLS rules Plaintiff attached to the Amended Complaint directly refute this contention. They expressly state that “nothing in these MLS rules precludes a listing participant [seller-broker] and a cooperating participant [buyer-agent], as a matter of mutual agreement, from modifying the cooperative compensation to be paid in the event ofa successful transaction.” Ex. A at 29 (emphasis added). Disclosure of the offer of compensation in the MLS listing also does not “preclude the listing broker from offering any MLS participant compensation other than the compensation indicated on his listings as 10 published by the MLS, provided the listing broker informs the other broker in writing in advance of their submitting an offer.” Jd. D. The Parties Plaintiffis a domestic for-profit corporation incorporated in the State of Florida. See id. 4 19. Plaintiff alleges that it sold five homes in Panama City, Florida, on February 1, 2021, May 12, 2021, November 17, 2021, March 31, 2022, and August 25, 2022. See id. These homes allegedly were listed on the Central Panhandle MLS, one of dozens of local MLSs in Florida. See id. J 3, 19. Plaintiff fails to append copies of any of the MLS listings or its listing agreements related to these sales. Plaintiff alleges it paid 2.5% commission to the buyer’s agent and 2.5% commission to the seller’s agent for one of its home sales, but does not allege any information as to the commissions offered or paid for the other four transactions. See id. 21. The Amended Complaint asserts generally that Plaintiff “paid supracompetitive rates for real estate services” and that Plaintiff “would not have made an offer of compensation to buyer’s agents to attract potential buyers in the first place” but for the “rules adopted by the Central Panhandle MLS.” Jd. Plaintiff names sixteen real estate brokerage companies in Florida as defendants but does not claim to have done business with any of them. See id. {J 1, 25-39. Each Broker Defendant is alleged to have fewer than 4,000 real estate agents licensed in Florida. See id. §§ 25-39. Combined, Broker Defendants represent only a small fraction of the hundreds of thousands of licensed real estate professionals in Florida. See id. The Amended Complaint names as a defendant Florida Realtors, a statewide real estate trade association. See id. § 22. Plaintiff alleges that Florida Realtors operates MLSAdvantage, a Florida-wide search engine for members to search the aggregated properties listed for sale on participating local MLSs. See id. { 23. Plaintiff alleges that the Broker Defendants are “members of Florida Realtors and one or more of the above local realtor associations and their affiliated 11 MLSs.” Id. 424. According to Plaintiff, Broker Defendants have “implement[ed] policies, manuals, and contracts that require their agents to comply with NAR rules” and have served in leadership positions with Florida Realtors, local associations, and MLSs. Jd. 4 90-98. The Amended Complaint also references, without actually naming, innumerable “co- conspirators,” including local realtor associations, MLSs, Broker Defendants’ employees and agents, and “other brokers” that have used MLSs. Jd. §{] 40-42. LEGAL STANDARD This Court requires fact pleading. See Fla. R. Civ. P. 1.110(b). “Florida is a fact-pleading jurisdiction. . . . Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.” Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. Sth DCA 2003) (citing Cont’ Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. Sth DCA 1994)). On a motion to dismiss, the court must determine “whether the complaint alleges sufficient ultimate facts, which under any theory of law, would entitle a plaintiff to the relief sought.” Plastiquim, S.A. v. Odebrecht Constr., Inc., 337 So. 3d 1270, 1273 (Fla. 3d DCA 2022) (citation omitted). “While [the court] must accept the facts alleged as true and make all reasonable inferences in favor of the pleader, conclusory allegations are insufficient.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018) (citation omitted). A. The Florida Antitrust Act To state a claim under the Florida Antitrust Act (“FAA”), a plaintiff must allege sufficient facts to establish: (i) a contract, combination or conspiracy;? (ii) in restraint of trade; (iii) in Florida. ° The statutory language “contract, combination, or conspiracy” requires a plaintiffto show some form of concerted action between two or more parties. See, e.g., Am. Needle, Inc. v. Nat’l Football 12 See § 542.18, Fla. Stat. (2023); United Am. Corp. v. Bitmain, Inc., 530 F. Supp. 3d 1241, 1255 (S.D. Fla. 2021) (citation omitted). This FAA language mirrors federal antitrust law. See 15 U.S.C. § 1 (the “Sherman Act”). Courts ruling on alleged violations of the FAA must give “due consideration and great weight . . . to the interpretations of the federal courts relating to comparable federal antitrust statutes.” § 542.32, Fla. Stat. (2023); see All Care Nursing Serv., Inc. v. High Tech Staffing Servs., Inc., 135 F.3d 740, 745 n.11 (11th Cir. 1998) (“Federal and Florida antitrust laws are analyzed under the same rules and case law.”) (citing § 542.32, Fla. Stat. (2023)). The FAA’s directive to consider federal authorities includes the seminal Supreme Court decision in Bell Atlantic Corp. v. Twombly, which established the standard of review at the motion to dismiss stage for an antitrust conspiracy claim. 550 U.S. 544, 558 (2007); see, e.g., MYD Marine Distrib., Inc. v. Int'l Paint Ltd., 76 So. 3d 42, 47 n.4 (Fla. 4th DCA 2011) (“Florida courts should look to Twombly in determining whether an agreement in violation of the Florida Antitrust law can be reasonably inferred from the alleged facts.”). In Twombly, the Supreme Court ruled that the “crucial question” courts must consider at the motion to dismiss stage “is whether the challenged anticompetitive conduct ‘stem[s] from independent decision or from an agreement, tacit or express.” 550 U.S. at 553. The Supreme Court further ruled that factual allegations that are equally consistent with a wide swath of lawful and independent business conduct as with an anticompetitive conspiracy are insufficient as a matter of law. See id. at 553-57. Plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” MYD Marine Distrib., Inc., 76 So. 3d at 46 n.4 (citation omitted) (analyzing alleged violation of Florida Antitrust Act under Twombly). A League, 560 U.S. 183, 190 (2010) (“The meaning of the term ‘contract, combination . ., OF conspiracy’ is informed by the ‘basic distinction’ in the Sherman Act ‘between concerted and independent action’ that distinguishes § 1 of the Sherman Act from § 2.”) (quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 767 (1984)). 13 conspiracy claim must be “plausible on its face” and the plaintiff must plead sufficient factual allegations to “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.”” Jd. (citing Twombly, 550 U.S. at 555). Accordingly, Florida courts have affirmed dismissals in reliance on federal case law that deemed plaintiffs antitrust claim to be implausible or “speculative.” See, e.g., Okeelanta Power Ltd. P’ship v. Fla. Power & Light Co., 766 So. 2d 264, 267-68 (Fla. 4th DCA 2000). To plead the first element of an FAA claim—contract, combination, or conspiracy—a plaintiff must allege an unlawful agreement among defendants, i.e., “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” Am. Tobacco Co. v. United States, 328 U.S. 781, 810 (1946). A plaintiff can allege an unlawful agreement in two ways. First, a plaintiff can rely on allegations of “[d]irect evidence,” i.e. evidence that is “explicit and does not require courts to make inferences to find an agreement.” United Am. Corp., 530 F. Supp. 3d at 1258, n.17 (citation omitted) (identifying “a recorded phone call in which two competitors agree to fix prices at a certain level” as an example of direct evidence of agreement). Plaintiff alleges no direct evidence in the Amended Complaint. Alternatively, a plaintiff can allege “circumstantial evidence” that “raises a suggestion of a preceding agreement.” Twombly, 550 U.S. at 556-57. Plaintiffs will often point to defendants engaging in parallel business behavior, known as “parallel conduct,” as suggestive that defendants have reached an agreement. Jd. at 552. But allegations that defendants engaged in parallel conduct are insufficient, standing alone, because parallel conduct might be “consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally 14 prompted by common perceptions of the market.” /d. at 554. In other words, even if defendants are alleged to have engaged in parallel behavior, a court has “no basis for inferring a prior agreement” from such behavior if each company “would rationally and independently want to do precisely that.” Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249, 1267 (11th Cir. 2019) (en banc). A plaintiff thus must offer additional facts that make the parallel conduct “more probative of conspiracy than of conscious parallelism,” i.e., a common reaction of companies to the same market factors based on each company acting in its own unilateral interest. /d.