A federal appeals court has left standing the dismissal of an antitrust lawsuit that challenged the requirement that real estate brokers hold membership in local, state and national Realtor organizations at once in order to reach the multiple listing service.
The U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal on Sept. 9 in a two-page per curiam opinion. The panel of Circuit Judges Davis, Jones and Ho ruled in Luz de Amor Eytalis v. Texas Association of Realtors, appeal No. 25-10970, on appeal from the U.S. District Court for the Northern District of Texas.
Eytalis, a broker in Wichita Falls, Texas, had sued the Texas Association of Realtors, the Wichita Falls Association of Realtors, Paragon MLS Connect and the National Association of Realtors. Her complaint argued that conditioning access to the local MLS on joining all three tiers of Realtor associations restrains competition.
The court never reached the merits
The panel did not decide whether the membership structure is anticompetitive. It decided that the complaint, by then in its third amended version, failed at an earlier gate.
“The conclusory facts alleged in Eytalis’s Third Amended Complaint are insufficient to state an antitrust injury, a necessary component of standing to bring a claim under the Sherman Antitrust Act,” the opinion says, citing the circuit’s 2026 decision in Rx Solutions v. Caremark and its 2021 decision in Harmon v. City of Arlington.
Antitrust injury is a threshold requirement. A plaintiff must allege harm of the type the antitrust laws were written to prevent, flowing from the conduct that makes the arrangement unlawful. Paying dues that a plaintiff would rather not pay does not by itself clear it, and a complaint that describes an arrangement without alleging concrete competitive harm does not survive a motion to dismiss.
The panel also found that Eytalis had forfeited her challenge to the district court’s ruling on the Clayton Act “by failing to brief the issue,” and held that the district court acted within its discretion when it declined to hear her remaining state law claims after the federal claims were gone. Her objection that the district court had not engaged with her arguments also failed; the panel noted that the lower court said it had conducted a de novo review of the contested portions and was not “required to reiterate the findings and conclusions of the magistrate judge.”
The opinion carries the notation “This opinion is not designated for publication,” and was decided on the court’s summary calendar.
How the case got here
The district court dismissed the federal antitrust claims along with state breach of contract and unjust enrichment claims on July 23, 2025, following a magistrate judge’s recommendation. Writing about that ruling, NAR General Counsel Jon Waclawski said that “MLSs are operated at the local level, and each MLS determines individual participation requirements,” and that “NAR’s integrated structure is fundamental to the value we deliver to members.”
The arrangement at issue is known in the industry as the three-way agreement, the framework the suit described as tying a broker’s local association membership to membership and dues at the state and national level. It has been a durable target for brokers who want MLS access without the full membership package, and it survived this appeal without the court weighing whether it restrains trade.
A pattern in the appellate courts
The decision follows two other appellate rulings in NAR’s favor in the past month. The Eighth Circuit upheld approval of the commission settlements on Aug. 19, and the Tenth Circuit affirmed the dismissal of Homie Technology’s antitrust suit on Aug. 11, also on the grounds that the plaintiff had not plausibly alleged antitrust injury or a conspiracy.
The common thread is procedural rather than substantive. In each case the appeals court examined what the plaintiff pleaded rather than how the industry operates, and in each case the pleading came up short. That is a meaningful result for the association’s litigation position and a narrow one for the underlying question, which these opinions leave undecided.
For brokers, nothing changes today. Local MLSs continue to set their own participation requirements, and where those requirements run through Realtor membership, the three-way structure applies. RealtyWire’s agents and brokerages coverage follows the membership and MLS access cases as they move.
