Thompson v. Metropolitan Multi-List, Inc.

• Decision Date: 11 July 1991
• Docket Number: MULTI-LIS,No. 90-8724,INC,90-8724
• Citation: 934 F.2d 1566
• Parties: 1991-1 Trade Cases 69,494 Fletcher L. THOMPSON d/b/a Fletcher L. Thompson Realty; Empire Real Estate Board, Inc., Plaintiffs-Appellants, v. METROPOLITAN, d/b/a Metro Listing Service; DeKalb Board of Realtors, Inc., Defendants-Appellees, Wendell White d/b/a Empire Realty Co. and E. Pearl Presley d/b/a Pal Realty Co., Intervenors-Plaintiffs.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1566

934 F.2d 1566

1991-1 Trade Cases 69,494

Fletcher L. THOMPSON d/b/a Fletcher L. Thompson Realty;

Empire Real Estate Board, Inc., Plaintiffs-Appellants, v. METROPOLITAN MULTI-LIST, INC., d/b/a Metro Listing Service;

DeKalb Board of Realtors, Inc., Defendants-Appellees,

Wendell White d/b/a Empire Realty Co. and E. Pearl Presley

d/b/a Pal Realty Co., Intervenors-Plaintiffs.

No. 90-8724.

United States Court of Appeals, Eleventh Circuit.

July 11, 1991.

William E. Sumner, Sumner & Hewes, David A. Webster, Robert A. Burroughs, Atlanta, Ga., for plaintiffs-appellants.

Brian P. Turcott, Hurt, Richardson, Garner, Todd & Cadenhead, Stephen E. O'Day, Atlanta, Ga., for Metropolitan.

Charles M. Goetz, Jr., Norton, Pennington, Goetz & Conkright, George Geeslin, Atlanta, Ga., for DeKalb Bd. of Realtors.

Appeal from the United States District Court for the Northern District of Georgia.

Before JOHNSON and COX, Circuit Judges, and GODBOLD, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This case arises on appeal following the district court's grant of summary judgment in favor of the defendants in this antitrust action.

I. STATEMENT OF THE CASE

A. Background Facts

Metropolitan Multi-List, Inc. ("Metro"), one of the defendants-appellees, is a wholly-owned subsidiary of the DeKalb Board of Realtors. Metro is a computerized multilist real estate listing system. A multilist system is a cooperative venture which is used by real estate brokers from various real estate firms who place into the system a list of all the houses that they are attempting to sell. Brokers representing potential buyers look for houses through the multilist, and in the event of a sale they split the resulting commission with the selling broker. Brokers consider the use of a multilist system a necessity.

Metro provides the only multilist service which covers all of Atlanta. While First Multiple competes with Metro on the north side of Atlanta, there is little or no competition on the south side of Atlanta. On the south side of Atlanta, Metro carries the vast majority of listings and is utilized in most of the completed sales, measured both in dollar amounts and in raw numbers. Also, the vast majority of real estate brokers active in the area are members of Metro.

In order to use the Metro multilisting service a broker must become a Realtor. A Realtor is a broker (or a sales associate) who belongs to one of the local branches of the National Association of Realtors. Metro was an independent listing service until the DeKalb Board of Realtors acquired Metro and imposed the Realtor membership requirement upon those who would like to use the listing service.

There are four parties to this dispute. The two defendants are Metro and the DeKalb Board of Realtors; the two plaintiffs are Fletcher Thompson and the Empire Real Estate Board. Fletcher Thompson is a real estate broker who owns his own brokerage firm on the south side of Atlanta. He does not wish to join the Atlanta Board of Realtors. ¹ He applied to use the Metro listing service but his application was denied solely because of his failure to join the Realtors. The defendants admit that when he joins the Realtors he will be allowed to use the listing service. The Empire Board was founded in 1939 as an African American professional association because, at that time, the Realtors excluded African Americans from membership. The Empire Board competes with the Board of Realtors and offers similar services, including a code of ethics and arbitration. The Empire Board is a predominantly African American association which services a predominantly African American clientele. Most of its members are located on the south side of Atlanta and most of its members traditionally represent buyers. The Empire Board alleges that, because of Metro's requirement that its members also belong to the Realtors, Empire is losing members. Some firms that otherwise would join the Empire Board cannot afford membership with both the Realtors and the Empire Board.

B. Procedural History

Plaintiffs filed their complaint on December 22, 1988, alleging antitrust and Fair Housing Act violations. Wendell White and others moved to intervene in this action, but the motion was denied. Following discovery, the parties filed cross motions for summary judgment. The district court granted defendants' summary judgment motion. The plaintiffs brought this timely appeal of the district court's dismissal of the antitrust claims. ²

II. ANALYSIS

A district court's order granting summary judgment is subject to de novo review by this Court. See Shipes v. Hanover Ins. Co., 884 F.2d 1357 (11th Cir.1989).

A. Standing

The question at the heart of standing analysis is whether the particular litigant before the court is entitled to have the court adjudicate the particular claim presented. See Warth v. Seldin, 422 U.S 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). There are two plaintiffs to this action: Empire and Thompson; there are basically three different antitrust claims alleged: an illegal tying arrangement; a conspiracy to monopolize a market; and an illegal group boycott.

1. Empire's Standing to Litigate the Three Claims

Empire is an unincorporated association. As such, it has standing to allege certain injuries suffered directly by the organization, see id. at 511, 95 S.Ct. at 2211, and standing to bring certain claims on behalf of its members. See id.

Empire has standing to directly bring the tying claim. We have recently held that an antitrust standing analysis involves a two-pronged inquiry into whether the plaintiff has suffered an antitrust injury and whether the plaintiff is an efficient enforcer of the antitrust laws. See Todorov v. DCH Healthcare Authority, 921 F.2d 1438 (11th Cir.1991). The "antitrust injury" is satisfied when the plaintiff "plead[s] and prove[s] that the injury [it has] suffered derives from some anticompetitive conduct and is the type of injury the antitrust laws were intended to prevent." Id. at 1450. Empire competes in the market for professional affiliation with the Realtors. Empire claims that it has lost members because the Realtors have entered an illegal tying arrangement with Metro which forces Empire members to drop their affiliation with Empire and join the Realtors. Assuming that Empire can prove these allegations, it has alleged a valid antitrust claim. See Section II C, infra. Empire is also an efficient enforcer of the antitrust laws because the alleged injury is neither speculative nor indirect. Todorov, 921 F.2d at 1451.

Empire has standing to bring a suit on behalf of its members for the conspiracy to monopolize the multilist service market claim. The courts apply slightly different tests to examine when an organization has standing to bring a claim directly and when the organization has standing to bring the claim on behalf of its members. Empire may bring a suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

United Auto Workers v. Brock, 477 U.S. 274, 282, 106 S.Ct. 2523, 2529, 91 L.Ed.2d 228 (1986). First, Empire's members could bring a suit in their own right for the conspiracy to monopolize the multilist market claim. There is evidence in the record supporting Empire's assertion that nearly 40% of Empire's members also belong to the Realtors and use Metro. It is beyond dispute that, as consumers of the multilisting service, the Empire members may bring an action alleging antitrust violations which force them to pay excessive fees. See Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 530, 103 S.Ct. 897, 904, 74 L.Ed.2d 723 (1982). Empire is asking for injunctive relief including a request that the court order Metro to eliminate its membership requirements and lower its fees. Both of these requests could be brought by an individual Empire member. Second, the suit is germane to the organization's purpose since Empire is a professional organization which strives to help its members perform as brokers. Cf. United Auto Workers v. Brock, 477 U.S. at 286-87, 106 S.Ct. at 2530-31 (discussing the U.A.W.'s purpose). Third, Empire is not seeking monetary damages but only injunctive relief; therefore as the Court noted in U.A.W. v. Brock, the association does not need the participation of its members to bring the suit. Id. at 287, 106 S.Ct. at 2531.

Empire also has standing to bring a suit on behalf of its members for the group boycott claim. Empire's members could bring a suit in their own right for the group boycott claim. There is evidence in the record that other members of Empire, including Thompson, would like to use Metro's multilist service but are ineligible because of the alleged group boycott. And Empire is asking for injunctive relief that is germane to the organization's purpose and could be brought by the association without the participation of the members.

2. Thompson's Standing to Litigate the Three Claims

Thompson has standing to litigate the tying claim and the group boycott claim. Thompson applied to use Metro's multilist service but his application was denied because he refused to purchase the tied product, membership in the Realtors. Our circuit has recognized, in a related context, that an attempt to enter a market coupled with a showing of preparedness is sufficient to establish an injury in fact, which is one of the bases of standing. See Martin v. Phillips Petroleum Co., 365 F.2d 629, 633 (5th Cir.1966). Therefore, in cases such as Thompson's, a defendant cannot benefit by the application of the standing doctrine from the fact that it is able to prevent the plaintiff from becoming a consumer of its product. As long as the plaintiff made a reasonable attempt to enter...