Preview
Filing # 196837414 E-Filed 04/23/2024 05:46:19 PM
IN THE CIRCUIT COURT, ELEVENTH
JUDICIAL DISTRICT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2023-27749-CA-01
DIVISION: COMPLEX BUSINESS
PARKER HOLDING GROUP, INC.,
Plaintiff,
vs.
FLORIDA ASSOCIATION OF
REALTORS, et al.,
Defendants.
_______________________________________/
DEFENDANTS PREMIERE PLUS REALTY CO., CHARLES RUTENBERG
REALTY, INC., AND CHARLES RUTENBERG REALTY – ORLANDO, LLC’S
MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED CLASS ACTION
COMPLAINT AND MEMORANDUM OF LAW
Defendants Premiere Plus Realty Co. (“Premiere”), Charles Rutenberg Realty, Inc.
(“CRR”), and Charles Rutenberg Realty – Orlando, LLC (“CRR Orlando”), by and through the
undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.110(b) and 1.140(b),
respectfully move the Court to dismiss Plaintiff’s First Amended Class Action Complaint (the
“Amended Complaint”). In support of the motion, Premiere, CRR, and CRR Orlando submit the
following memorandum of law.
MEMORANDUM OF LAW
PRELIMINARY STATEMENT
Plaintiff Parker Holding Group, Inc.’s (“Plaintiff”) Amended Complaint summarily alleges
that Premiere, CRR, and CRR Orlando, along with a host of other defendants, agreed, combined,
and conspired “to impose, implement, and enforce anticompetitive restraints that cause home
sellers in Florida to pay inflated commissions in connection with the sale of their homes, in
1
violation of the Florida Antitrust Act of 1980 and the Florida Deceptive and Unfair Trade Practices
Act.” Am. Compl. ¶ 1. But the 142-paragraph, two-count Amended Complaint says nothing about
what Premiere, CRR, and CRR Orlando are alleged to have done wrong. Plaintiff alleges that these
three defendants have real estate agents in Florida, do business in the state, and may be successful
in their brokerage activities—but Plaintiff offers no allegations that any of the entities engaged in
any improper business practice. At most, the Amended Complaint alleges that employees or agents
of these entities participated in certain real estate associations. See Am. Compl. ¶¶ 24 n. 1, 93, 97,
98.
As discussed below, Florida pleading standards—and their federal equivalents—require
more; they require actual, plausible facts that each defendant committed the harms alleged. This
Amended Complaint fails that bar and runs smack into the heart of Twombly’s holding, which
affirmed dismissal of an antitrust claim under the comparable federal standard because a
“conclusory allegation of agreement at some unidentified point does not supply facts adequate to
show illegality.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Dismissal is required.1
CURSORY ALLEGATIONS AS TO PREMIERE, CRR, AND CRR ORLANDO
Plaintiff’s Amended Complaint contains minimal facts about Premiere, CRR, or CRR
Orlando beyond the jurisdictional allegations that they are incorporated or organized in Florida
with their principal places of business in the state. See e.g., Am. Compl. ¶ 27. Plaintiff alleges that
Premiere “has approximately 1,502 real estate agents licensed in Florida,” while CRR and CRR
1
Concurrently with this Motion, CRR and CRR Orlando filed a motion to strike and seek to
enforce all rights to arbitrate, engage in alternative dispute resolution, or enforce a waiver of class
action proceedings that they may have with various unnamed class members. Consistent with that
filing, this Motion addresses only the claims in the Amended Complaint for any putative class
member not bound by such provisions.
2
Orlando together have “3,044 real estate agents licensed in Florida.”2 Compl. ¶¶ 27, 37. Then,
Plaintiff pulls from public websites to allege that CRR and CRR Orlando “dominate[] the Tampa
Market” while Premiere Plus is “#1 in transactions and listings” in certain areas of Florida. Am.
Compl. ¶ 100.3
Apart from these allegations regarding corporate existence and industry standing, the
Amended Complaint adds only two allegations regarding Premiere, CRR, or CRR Orlando. First,
Plaintiff alleges that certain individuals affiliated with Premiere, CRR, or CRR Orlando allegedly
engaged in local or regional real estate associations. Am. Compl. ¶¶ 97, 98. Second, Plaintiff
alleges the existence of an undated “Charles Rutenberg Realty policies and procedures manual”
that discusses NAR’s Code of Ethics and the MLS system. Am. Compl. ¶ 93.
Despite amendment, Plaintiff’s allegations fail to move the needle under Twombly and do
not suggest that Premiere, CRR, or CRR Orlando plausibly agreed to any illegal conduct.
STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must allege ‘sufficient ultimate facts’
showing entitlement to relief.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA
2018). “[T]he party must plead sufficient facts to establish each element and cannot use terms
which are conclusory.” Okeelanta Power Ltd. P'ship v. Fla. Power & Light Co., 766 So.2d 264,
267 (Fla. 4th DCA 2000). In particular, to “survive a motion to dismiss [a Florida antitrust claim],
[plaintiff] could not merely plead that an agreement was reached.” MYD Marine Distrib., Inc. v.
Int'l Paint Ltd., 76 So. 3d 42, 48 (Fla. 4th DCA 2011).
2
Plaintiff defines CRR and CRR Orlando together as “Charles Rutenberg Realty.” Am. Compl. ¶
27. This disregard for corporate separateness further inhibits Plaintiff’s ability to state a claim as
to either entity.
3
These geographies are unconnected to the relevant geographic markets here, which Plaintiff
defines as the “exclusive territories of the Florida Realtor MLSs.” Am. Compl. ¶ 16.
3
“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.” Id. at 47 (evaluating
the sufficiency of the factual allegations under federal precedent); see also Cap. Wealth Advisors,
LLC v. Cap. Wealth Advisors, Inc., 335 So. 3d 164, 166 n.1 (Fla. 2d DCA 2021) (citing Oce
Printing Sys. USA, Inc. v. Mailers Data Servs., Inc., 760 So. 2d 1037, 1041 (Fla. 2d DCA 2000));
MYD, 76 So. 3d at 46 (“Florida courts routinely rely upon federal courts’ interpretations of the
Sherman Act”). “The Florida Legislature has indicated that its intent is for courts that are
construing the Florida Antitrust Act to give ‘due consideration and great weight . . . to the
interpretations of the federal courts relating to comparable federal antitrust statutes.’” MYD, 76 So.
3d at 46 (quoting Fla. Stat. § 542.32).
Federal law is clear: to survive a motion to dismiss, factual allegations “must be enough to
raise a right to relief above the speculative level,” or “contain something more than a statement of
facts that merely creates a suspicion of a legally cognizable right of action.” Twombly, 550 U.S. at
555 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed.
2004)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint “must allege that each individual
defendant joined the conspiracy and played some role in it because, at the heart of an antitrust
conspiracy is an agreement and a conscious decision by each defendant to join it.” In re TFT-LCD
(Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1117 (N.D. Cal. 2008) (citation omitted).
ARGUMENT
This Amended Complaint fails to meet basic pleading standards and should be dismissed.
It includes insufficient facts to support any wrongdoing by Premiere, CRR, or CRR Orlando.
4
Instead, it relies on impermissible group pleading, individual participation in trade associations,
and a single line from an unspecified manual. Plaintiff cannot state any claim.
A. Group Pleading Is Improper
The Amended Complaint improperly lodges conclusory allegations against all “Broker
Defendants” as a collective. 4 For example, Plaintiff alleges that the “Broker Defendants”
participated in “adopting, maintaining, and enforcing the NAR’s anticompetitive rules through the
Florida Realtor MLSs.” Am. Compl. ¶ 4. Plaintiff continues that “Florida Realtors and the Broker
Defendants have designed and facilitated a process for fixing buyer-agent commissions and seller-
broker commissions.” Am. Compl. ¶ 6. These sorts of allegations do not support the claim that
Premiere, CRR, or CRR Orlando each consciously participated in any anticompetitive conduct.
Twombly “specifically reject[s]” the notion that an antitrust claim may survive a motion to
dismiss by “[g]eneric pleading, alleging misconduct against defendants without specifics as to the
role each played in the alleged conspiracy.” Total Benefits Planning Agency, Inc. v. Anthem Blue
Cross & Blue Shield, 552 F.3d 430, 436 (6th Cir. 2008). Antitrust plaintiffs “cannot escape their
burden of alleging that each defendant participated in or agreed to join the conspiracy by using the
term ‘defendants' to apply to numerous parties without any specific allegations.” Jung v. Ass'n of
Am. Med. Colls., 300 F. Supp. 2d 119, 163 (D.D.C. 2004); see also In re Auto Body Shop Antitrust
Litig., No. 6:14-CV-6006-ORL-31, 2015 WL 4887882, at *6 (M.D. Fla. June 3, 2015)
(recommending dismissal because there were no “specific allegations linking each Defendant to a
price-fixing conspiracy”); Eagletech Commc'ns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855,
863 (Fla. 3d DCA 2012) (dismissing civil conspiracy claim in which plaintiff “failed to allege
4
Plaintiff defines Broker Defendants to include “sixteen of the largest real estate brokers in
Florida.” Am. Compl. ¶ 1.
5
sufficient facts from which a reasonable inference could be drawn that all of the named defendants
participated in a conspiracy”).
Plaintiff is required to plead facts against each defendant, because the “heart of an antitrust
conspiracy is an agreement and a conscious decision by each defendant to join it.” TFT-LCD, 586
F. Supp. 2d at 1117 (finding “that general allegations as to all defendants, to ‘Japanese defendants,’
or to a single corporate entity such as ‘Hitachi’ is insufficient to put specific defendants on notice
of the claims against them”). Indeed, it is “fundamental to pleading in the post-Twombly era that
before a defendant is forced to be held to account for conduct as serious as a conspiracy in restraint
of trade in violation of the Sherman Act that the pleader inform the defendant what it is alleged to
have done.” Litovich v. Bank of Am. Corp., No. 20-cv-3154, 2021 WL 4952034, at *24 (S.D.N.Y.
Oct. 25, 2021). Collective liability based on impermissible group pleading is precisely the problem
here.
B. No Allegations Support an Inference of Conspiracy as to Premiere, CRR, or CRR
Orlando
Plaintiff’s new allegations—that certain Premiere, CRR, and CRR Orlando agents or
affiliates participated in trade associations—do not support a claim that these entities joined any
conspiracy. See Am. Compl. ¶¶ 97-98. It is well-established that “participation in trade
organizations provides no indication of conspiracy.” Quality Auto Painting Ctr. Of Roselle v. State
Farm Indem. Co., 917 F.3d 1249, 1270 (11th Cir. 2019) (en banc) (quoting Am. Dental Ass’n v.
Cigna Corp., 605 F. 3d 1283, 1295 (11th Cir. 2010)); see also Parker Auto Body Inc v. State Farm
Mut. Auto. Ins. Co., 171 F. Supp. 3d 1274, 1285 (M.D. Fla. 2016) (same).
Similarly, participation in an antitrust conspiracy cannot be inferred from allegations of
adoption of a trade organization’s policies. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,
349 (3d Cir. 2010) (neither defendants’ membership nor “common adoption of the trade group’s
6
suggestions” suggested conspiracy). Accordingly, Plaintiff’s allegation about the “Charles
Rutenberg Realty policies and procedures manual” is not indicative of a conspiracy. Plaintiff
cherry-picks from the manual to allege that agents are required to join an association of realtors;
follow all rules for entering listing information in the MLS system; and not vary from the principles
set out in NAR’s Code of Ethics. Am. Compl. ¶ 93. But piecemeal extracts from a manual do not
indicate that either CRR or CRR Orlando joined a broad conspiracy. See Brokerage, 618 F.3d at
349-50. Moreover, the manual directs compliance with Florida law and makes clear that: “It is the
Company policy to allow the individual agent to negotiate his or her commission rate with the
Buyer or Seller.” 5 This cuts against any inference of anticompetitive agreements regarding
commissions. Plaintiff’s allegation is also vague as to whether and how CRR or CRR Orlando
used this manual during the relevant time period, and they do not allege any similar policies for
Premiere.
In sum, the Amended Complaint fails to plausibly allege any conduct by Premiere, CRR,
or CRR Orlando in violation of Florida law.6
CONCLUSION
Plaintiff’s claims against Premiere, CRR, and CRR Orlando should be dismissed pursuant
to Florida Rule of Civil Procedure 1.110(b) and 1.140(b).
5
See https://joincrrtampabay.com/Lib/file/doc_template/clearwater_policies.pdf (sample
manual).
6
Filed contemporaneously with this individual motion to dismiss, Premiere, CRR, and CRR
Orlando all join in the Defendants’ Joint Motion to Dismiss the Amended Complaint, which sets
forth additional basis for which Counts I and II of the Amended Complaint should be dismissed
with prejudice.
7
Dated: April 23, 2024 Respectfully submitted,
/s/ C. Ryan Reetz
C. Ryan Reetz
BRYAN CAVE LEIGHTON PAISNER LLP
200 South Biscayne Boulevard, Suite 400
Miami, FL 33131-5354
Telephone: (786) 322-7500
Email: ryan.reetz@bclplaw.com
James D. Lawrence (admitted pro hac vice)
BRYAN CAVE LEIGHTON PAISNER LLP
1200 Main St., Suite 3800
Kansas City, MO 64105
Telephone: (816) 374-3200
Email: jim.lawrence@bclplaw.com
Timothy R. Beyer (admitted pro hac vice)
BRYAN CAVE LEIGHTON PAISNER LLP
1700 Lincoln Street, #4100
Denver, CO 80203
Telephone: (303) 866-7000
Email: tim.beyer@bclplaw.com
Lindsay S. Johnson (admitted pro hac vice)
BRYAN CAVE LEIGHTON PAISNER LLP
1201 W. Peachtree St., N.W., 14th Floor
Atlanta, GA 30309-3471
Telephone: (404) 572-6600
Email: lindsay.johnson@bclplaw.com
Emilee L. Hargis (admitted pro hac vice)
BRYAN CAVE LEIGHTON PAISNER LLP
211 N. Broadway, Suite 3600
St. Louis, MO 63102
Telephone: (314) 259-2028
Email: emilee.hargis@bclplaw.com
Attorneys for Premiere Plus Realty Co.,
Charles Rutenberg Realty, Inc., and Charles
Rutenberg Realty – Orlando, LLC
8
CERTIFICATE OF CONFERENCE
I HEREBY CERTIFY that, on April 19, 2024, Lindsay Johnson conferred by telephone
with counsel for plaintiff, Jeffrey Berhold and Brandon Sadowsky, in a good-faith effort to resolve
by agreement the foregoing motion, and that we were unable to reach such an agreement.
/s/ C. Ryan Reetz
C. Ryan Reetz
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
e-service through the State of Florida E-Filing Portal to all counsel of record on April 23, 2024.
/s/ C. Ryan Reetz
C. Ryan Reetz
9
Preview
Filing # 196837414 E-Filed 04/23/2024 05:46:19 PM IN THE CIRCUIT COURT, ELEVENTH JUDICIAL DISTRICT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2023-27749-CA-01 DIVISION: COMPLEX BUSINESS PARKER HOLDING GROUP, INC., Plaintiff, vs. FLORIDA ASSOCIATION OF REALTORS, et al., Defendants. _______________________________________/ DEFENDANTS PREMIERE PLUS REALTY CO., CHARLES RUTENBERG REALTY, INC., AND CHARLES RUTENBERG REALTY – ORLANDO, LLC’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT AND MEMORANDUM OF LAW Defendants Premiere Plus Realty Co. (“Premiere”), Charles Rutenberg Realty, Inc. (“CRR”), and Charles Rutenberg Realty – Orlando, LLC (“CRR Orlando”), by and through the undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.110(b) and 1.140(b), respectfully move the Court to dismiss Plaintiff’s First Amended Class Action Complaint (the “Amended Complaint”). In support of the motion, Premiere, CRR, and CRR Orlando submit the following memorandum of law. MEMORANDUM OF LAW PRELIMINARY STATEMENT Plaintiff Parker Holding Group, Inc.’s (“Plaintiff”) Amended Complaint summarily alleges that Premiere, CRR, and CRR Orlando, along with a host of other defendants, agreed, combined, and conspired “to impose, implement, and enforce anticompetitive restraints that cause home sellers in Florida to pay inflated commissions in connection with the sale of their homes, in 1 violation of the Florida Antitrust Act of 1980 and the Florida Deceptive and Unfair Trade Practices Act.” Am. Compl. ¶ 1. But the 142-paragraph, two-count Amended Complaint says nothing about what Premiere, CRR, and CRR Orlando are alleged to have done wrong. Plaintiff alleges that these three defendants have real estate agents in Florida, do business in the state, and may be successful in their brokerage activities—but Plaintiff offers no allegations that any of the entities engaged in any improper business practice. At most, the Amended Complaint alleges that employees or agents of these entities participated in certain real estate associations. See Am. Compl. ¶¶ 24 n. 1, 93, 97, 98. As discussed below, Florida pleading standards—and their federal equivalents—require more; they require actual, plausible facts that each defendant committed the harms alleged. This Amended Complaint fails that bar and runs smack into the heart of Twombly’s holding, which affirmed dismissal of an antitrust claim under the comparable federal standard because a “conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Dismissal is required.1 CURSORY ALLEGATIONS AS TO PREMIERE, CRR, AND CRR ORLANDO Plaintiff’s Amended Complaint contains minimal facts about Premiere, CRR, or CRR Orlando beyond the jurisdictional allegations that they are incorporated or organized in Florida with their principal places of business in the state. See e.g., Am. Compl. ¶ 27. Plaintiff alleges that Premiere “has approximately 1,502 real estate agents licensed in Florida,” while CRR and CRR 1 Concurrently with this Motion, CRR and CRR Orlando filed a motion to strike and seek to enforce all rights to arbitrate, engage in alternative dispute resolution, or enforce a waiver of class action proceedings that they may have with various unnamed class members. Consistent with that filing, this Motion addresses only the claims in the Amended Complaint for any putative class member not bound by such provisions. 2 Orlando together have “3,044 real estate agents licensed in Florida.”2 Compl. ¶¶ 27, 37. Then, Plaintiff pulls from public websites to allege that CRR and CRR Orlando “dominate[] the Tampa Market” while Premiere Plus is “#1 in transactions and listings” in certain areas of Florida. Am. Compl. ¶ 100.3 Apart from these allegations regarding corporate existence and industry standing, the Amended Complaint adds only two allegations regarding Premiere, CRR, or CRR Orlando. First, Plaintiff alleges that certain individuals affiliated with Premiere, CRR, or CRR Orlando allegedly engaged in local or regional real estate associations. Am. Compl. ¶¶ 97, 98. Second, Plaintiff alleges the existence of an undated “Charles Rutenberg Realty policies and procedures manual” that discusses NAR’s Code of Ethics and the MLS system. Am. Compl. ¶ 93. Despite amendment, Plaintiff’s allegations fail to move the needle under Twombly and do not suggest that Premiere, CRR, or CRR Orlando plausibly agreed to any illegal conduct. STANDARD OF REVIEW “To survive a motion to dismiss, a complaint must allege ‘sufficient ultimate facts’ showing entitlement to relief.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018). “[T]he party must plead sufficient facts to establish each element and cannot use terms which are conclusory.” Okeelanta Power Ltd. P'ship v. Fla. Power & Light Co., 766 So.2d 264, 267 (Fla. 4th DCA 2000). In particular, to “survive a motion to dismiss [a Florida antitrust claim], [plaintiff] could not merely plead that an agreement was reached.” MYD Marine Distrib., Inc. v. Int'l Paint Ltd., 76 So. 3d 42, 48 (Fla. 4th DCA 2011). 2 Plaintiff defines CRR and CRR Orlando together as “Charles Rutenberg Realty.” Am. Compl. ¶ 27. This disregard for corporate separateness further inhibits Plaintiff’s ability to state a claim as to either entity. 3 These geographies are unconnected to the relevant geographic markets here, which Plaintiff defines as the “exclusive territories of the Florida Realtor MLSs.” Am. Compl. ¶ 16. 3 “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.” Id. at 47 (evaluating the sufficiency of the factual allegations under federal precedent); see also Cap. Wealth Advisors, LLC v. Cap. Wealth Advisors, Inc., 335 So. 3d 164, 166 n.1 (Fla. 2d DCA 2021) (citing Oce Printing Sys. USA, Inc. v. Mailers Data Servs., Inc., 760 So. 2d 1037, 1041 (Fla. 2d DCA 2000)); MYD, 76 So. 3d at 46 (“Florida courts routinely rely upon federal courts’ interpretations of the Sherman Act”). “The Florida Legislature has indicated that its intent is for courts that are construing the Florida Antitrust Act to give ‘due consideration and great weight . . . to the interpretations of the federal courts relating to comparable federal antitrust statutes.’” MYD, 76 So. 3d at 46 (quoting Fla. Stat. § 542.32). Federal law is clear: to survive a motion to dismiss, factual allegations “must be enough to raise a right to relief above the speculative level,” or “contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.” Twombly, 550 U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint “must allege that each individual defendant joined the conspiracy and played some role in it because, at the heart of an antitrust conspiracy is an agreement and a conscious decision by each defendant to join it.” In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1117 (N.D. Cal. 2008) (citation omitted). ARGUMENT This Amended Complaint fails to meet basic pleading standards and should be dismissed. It includes insufficient facts to support any wrongdoing by Premiere, CRR, or CRR Orlando. 4 Instead, it relies on impermissible group pleading, individual participation in trade associations, and a single line from an unspecified manual. Plaintiff cannot state any claim. A. Group Pleading Is Improper The Amended Complaint improperly lodges conclusory allegations against all “Broker Defendants” as a collective. 4 For example, Plaintiff alleges that the “Broker Defendants” participated in “adopting, maintaining, and enforcing the NAR’s anticompetitive rules through the Florida Realtor MLSs.” Am. Compl. ¶ 4. Plaintiff continues that “Florida Realtors and the Broker Defendants have designed and facilitated a process for fixing buyer-agent commissions and seller- broker commissions.” Am. Compl. ¶ 6. These sorts of allegations do not support the claim that Premiere, CRR, or CRR Orlando each consciously participated in any anticompetitive conduct. Twombly “specifically reject[s]” the notion that an antitrust claim may survive a motion to dismiss by “[g]eneric pleading, alleging misconduct against defendants without specifics as to the role each played in the alleged conspiracy.” Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 436 (6th Cir. 2008). Antitrust plaintiffs “cannot escape their burden of alleging that each defendant participated in or agreed to join the conspiracy by using the term ‘defendants' to apply to numerous parties without any specific allegations.” Jung v. Ass'n of Am. Med. Colls., 300 F. Supp. 2d 119, 163 (D.D.C. 2004); see also In re Auto Body Shop Antitrust Litig., No. 6:14-CV-6006-ORL-31, 2015 WL 4887882, at *6 (M.D. Fla. June 3, 2015) (recommending dismissal because there were no “specific allegations linking each Defendant to a price-fixing conspiracy”); Eagletech Commc'ns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 863 (Fla. 3d DCA 2012) (dismissing civil conspiracy claim in which plaintiff “failed to allege 4 Plaintiff defines Broker Defendants to include “sixteen of the largest real estate brokers in Florida.” Am. Compl. ¶ 1. 5 sufficient facts from which a reasonable inference could be drawn that all of the named defendants participated in a conspiracy”). Plaintiff is required to plead facts against each defendant, because the “heart of an antitrust conspiracy is an agreement and a conscious decision by each defendant to join it.” TFT-LCD, 586 F. Supp. 2d at 1117 (finding “that general allegations as to all defendants, to ‘Japanese defendants,’ or to a single corporate entity such as ‘Hitachi’ is insufficient to put specific defendants on notice of the claims against them”). Indeed, it is “fundamental to pleading in the post-Twombly era that before a defendant is forced to be held to account for conduct as serious as a conspiracy in restraint of trade in violation of the Sherman Act that the pleader inform the defendant what it is alleged to have done.” Litovich v. Bank of Am. Corp., No. 20-cv-3154, 2021 WL 4952034, at *24 (S.D.N.Y. Oct. 25, 2021). Collective liability based on impermissible group pleading is precisely the problem here. B. No Allegations Support an Inference of Conspiracy as to Premiere, CRR, or CRR Orlando Plaintiff’s new allegations—that certain Premiere, CRR, and CRR Orlando agents or affiliates participated in trade associations—do not support a claim that these entities joined any conspiracy. See Am. Compl. ¶¶ 97-98. It is well-established that “participation in trade organizations provides no indication of conspiracy.” Quality Auto Painting Ctr. Of Roselle v. State Farm Indem. Co., 917 F.3d 1249, 1270 (11th Cir. 2019) (en banc) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F. 3d 1283, 1295 (11th Cir. 2010)); see also Parker Auto Body Inc v. State Farm Mut. Auto. Ins. Co., 171 F. Supp. 3d 1274, 1285 (M.D. Fla. 2016) (same). Similarly, participation in an antitrust conspiracy cannot be inferred from allegations of adoption of a trade organization’s policies. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 349 (3d Cir. 2010) (neither defendants’ membership nor “common adoption of the trade group’s 6 suggestions” suggested conspiracy). Accordingly, Plaintiff’s allegation about the “Charles Rutenberg Realty policies and procedures manual” is not indicative of a conspiracy. Plaintiff cherry-picks from the manual to allege that agents are required to join an association of realtors; follow all rules for entering listing information in the MLS system; and not vary from the principles set out in NAR’s Code of Ethics. Am. Compl. ¶ 93. But piecemeal extracts from a manual do not indicate that either CRR or CRR Orlando joined a broad conspiracy. See Brokerage, 618 F.3d at 349-50. Moreover, the manual directs compliance with Florida law and makes clear that: “It is the Company policy to allow the individual agent to negotiate his or her commission rate with the Buyer or Seller.” 5 This cuts against any inference of anticompetitive agreements regarding commissions. Plaintiff’s allegation is also vague as to whether and how CRR or CRR Orlando used this manual during the relevant time period, and they do not allege any similar policies for Premiere. In sum, the Amended Complaint fails to plausibly allege any conduct by Premiere, CRR, or CRR Orlando in violation of Florida law.6 CONCLUSION Plaintiff’s claims against Premiere, CRR, and CRR Orlando should be dismissed pursuant to Florida Rule of Civil Procedure 1.110(b) and 1.140(b). 5 See https://joincrrtampabay.com/Lib/file/doc_template/clearwater_policies.pdf (sample manual). 6 Filed contemporaneously with this individual motion to dismiss, Premiere, CRR, and CRR Orlando all join in the Defendants’ Joint Motion to Dismiss the Amended Complaint, which sets forth additional basis for which Counts I and II of the Amended Complaint should be dismissed with prejudice. 7 Dated: April 23, 2024 Respectfully submitted, /s/ C. Ryan Reetz C. Ryan Reetz BRYAN CAVE LEIGHTON PAISNER LLP 200 South Biscayne Boulevard, Suite 400 Miami, FL 33131-5354 Telephone: (786) 322-7500 Email: ryan.reetz@bclplaw.com James D. Lawrence (admitted pro hac vice) BRYAN CAVE LEIGHTON PAISNER LLP 1200 Main St., Suite 3800 Kansas City, MO 64105 Telephone: (816) 374-3200 Email: jim.lawrence@bclplaw.com Timothy R. Beyer (admitted pro hac vice) BRYAN CAVE LEIGHTON PAISNER LLP 1700 Lincoln Street, #4100 Denver, CO 80203 Telephone: (303) 866-7000 Email: tim.beyer@bclplaw.com Lindsay S. Johnson (admitted pro hac vice) BRYAN CAVE LEIGHTON PAISNER LLP 1201 W. Peachtree St., N.W., 14th Floor Atlanta, GA 30309-3471 Telephone: (404) 572-6600 Email: lindsay.johnson@bclplaw.com Emilee L. Hargis (admitted pro hac vice) BRYAN CAVE LEIGHTON PAISNER LLP 211 N. Broadway, Suite 3600 St. Louis, MO 63102 Telephone: (314) 259-2028 Email: emilee.hargis@bclplaw.com Attorneys for Premiere Plus Realty Co., Charles Rutenberg Realty, Inc., and Charles Rutenberg Realty – Orlando, LLC 8 CERTIFICATE OF CONFERENCE I HEREBY CERTIFY that, on April 19, 2024, Lindsay Johnson conferred by telephone with counsel for plaintiff, Jeffrey Berhold and Brandon Sadowsky, in a good-faith effort to resolve by agreement the foregoing motion, and that we were unable to reach such an agreement. /s/ C. Ryan Reetz C. Ryan Reetz CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via e-service through the State of Florida E-Filing Portal to all counsel of record on April 23, 2024. /s/ C. Ryan Reetz C. Ryan Reetz 9