Zea v. NAR: The Theory of Concerted Inaction
It's a long shot... but an angry REALTOR is taking it...
A giant new antitrust lawsuit has been filed in Florida… except that it is giant only in the length of the Complaint and the numerous causes of action detailed in it. As far as I can tell, it is one person suing 16 REALTOR Associations and MLSs, which means damages will be paltry. Though the point of the lawsuit appears to be to get injunctive relief.
The case is called Zea v. NAR, Docket No. 9:25-cv-81016 in the Southern District of Florida. It starts off interesting because the case is filed pro se, meaning that the plaintiff is representing himself without an attorney. Reading through the Complaint, it appears to me that the plaintiff, Jorge Zea, might be a lawyer or have legal training. Or really good ChatGPT skills. A non-lawyer would, I think, have real difficulty writing this Complaint.
Nonetheless, I’m not sure a pro se plaintiff going against the legal might of the 16 Associations and MLSs, which includes NAR and some of the largest and wealthiest MLSs in the country, is going to do all that well. I guess we’ll see if the case continues pro se, or if some lawyer decides to jump in.
What makes the case truly interesting, why I think it’s worth discussing, is that Zea raises a legal theory that is… well… not common. I’m not sure that it is entirely novel, but I can say I haven’t seen it before.
Broadly speaking, Zea contends that the various defendant Associations and MLSs have violated the antitrust laws by not enforcing their own pro-competitive rules—many of which were promulgated as a direct response to being held liable for anticompetitive actions in the past.
Every other antitrust case I can think of alleged that the defendants did something that inhibited competition. For example, in Sitzer v. NAR, the claim was that defendants promulgated and enforced a variety of rules that encouraged steering. I can’t think of a single lawsuit claiming that not doing something is anticompetitive. And asking Grok for examples yielded no results, at least based on a few minutes of looking.
Nonetheless, the case is worth looking at and at least the idea that “concerted inaction,” a coordinated refusal to enforce rules, is an antitrust violation.
As always, I am not your lawyer and none of this is legal advice.