The Quincy Association of REALTORS® (the "Association") operates a multiple listing service (the "MLS"). The MLS’s rules contain the usual requirement that the amount of compensation to be paid to a cooperating broker must be published in the MLS, expressed either as a percentage of the gross selling price of the property or a flat dollar amount.
Vaughn Enterprises, Inc. d/b/a Help-U-Sell of Adams County, a real estate brokerage and member of the Association, offered home sellers several options as to how their homes could be marketed. One of the options was to list the property and place it in the MLS, for which Help-U-Sell charged a percentage of the selling price and offered to pay to cooperating brokers a specified portion of that amount. Another Help-U-Sell option to sellers was designated an "exclusive listing," for which Help-U-Sell charged a flat fee. Such listings were not submitted to the MLS, although any other broker who sold such a listing was paid a "show fee" of $500 or 1% of the sales price.
In June, 1993, several property listings appeared in the MLS stating"call office for commission split." Help-U-Sell claimed this was done so those brokers placing such listings in the MLS could offer a 50/50 commission split to non-Help-U-Sell cooperating licensees but a lower amount to Help-U-Sell. In response to this action, the Association sent a memorandum to all of its MLS designated members reminding them that one of the requirements for putting a listing in the MLS was listing either a percentage or a specific dollar amount for a commission split, and that failure to comply with this rule would result in the removal of the listing from the MLS. Subsequently, the practice of stating "call office" for the commission split ceased.
Help-U-Sell sued the Association and a number of brokers, claiming that the brokers conspired to restrain trade in violation of the antitrust laws and that the Association participated in that conspiracy. The company specifically alleged that the brokers had entered into"conspiracies to fix prices, control markets and force Help-U-Sell out of business," and that the Association assisted its member real estate brokers in doing so.
The Association moved for summary judgment. The Association pointed out that Help-U-Sell had admitted that the Association had not participated in any plans "to offer punitive commission splits," had not participated in or encouraged refusals to show Help-U-Sell properties, and neither had participated in, nor approved any alleged disparagement of Help-U-Sell. Further, the Association argued that it had taken a variety of proactive steps to keep its members from engaging in anti-competitive practices. The President, Executive Officer and attorney for the Association all had taken actions to uphold antitrust laws and to enforce the MLS rules. However, Help-U-Sell contended that all of these people were terminated from the Association and that the subsequent leadership did nothing to "quell the anti-competitive activities." Additionally, Help-U-Sell claimed that the subsequent leadership excluded its agents from committee membership and Association activities.
The District Court granted the Association’s motion, holding that Help-U-Sell must present "more than a mere scintilla of evidence" to demonstrate the requisite "genuine issue of material fact" to allow its case to proceed to trial. The court concluded that Help-U-Sell had failed to present any evidence to support its claims that the Association participated in, condoned, or facilitated the activities of the other defendants in the alleged conspiracy. That determination made it unnecessary for the court to determine whether such a conspiracy did, in fact, exist.
Vaughan Enterprises v. Quincy Ass'n of REALTORS®, 31 F. Supp 2d 623 (C.D. Ill. 1997).