Will the 10th Circuit Revive the Homie v. NAR Commission Filter Rule Challenge?

By Frances Flynn Thorsen

On May 12, 2026, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit heard oral argument in Homie Technology, Inc. v. National Association of Realtors et al. — a case that asks whether a specific NAR rule enabling agents to filter MLS listings by buyer-broker commission offered is itself an illegal conspiracy under the Sherman Antitrust Act. The panel expressed skepticism, but the case raises questions that go well beyond one Utah discount brokerage. If Homie wins, it could signal that the landmark Sitzer/Burnett settlement did not fully resolve the antitrust exposure embedded in NAR's MLS architecture.

Background: Who Is Homie, and What Did They Allege?

Homie Technology is a Utah-based flat-fee real estate brokerage that disrupted the traditional commission model by charging sellers a flat fee rather than a percentage of the sale price. Founded in 2015, Homie grew to become one of the largest discount brokerages in the Mountain West before filing its antitrust complaint in the U.S. District Court for the District of Utah on August 22, 2024.

The complaint named NAR, Anywhere Real Estate (formerly Realogy), and several other large national brokerages as defendants. Homie's central allegation was that NAR's "commission filter rule" — a feature of MLS platforms that allows buyer's agents to filter listings by the buyer-broker commission offered by the seller — constitutes a per se illegal group boycott under Sherman Act Section 1. Homie argued that this rule enables traditional brokers to systematically steer buyers away from listings that offer low or no buyer-broker commissions, effectively boycotting discount brokerages like Homie that compete on price.

The complaint also alleged that the defendants conspired to enforce this rule to maintain artificially inflated commission rates across the market, harming both consumers and competing low-cost brokerages.

The District Court Dismissal (July 15, 2025)

Judge Dale A. Kimball of the U.S. District Court for the District of Utah dismissed all claims with prejudice on July 15, 2025. The dismissal order found that:

1. Statute of limitations: The NAR rules Homie challenged were adopted at the latest before the applicable limitations period, meaning Homie's claims were time-barred.

2. Failure to plead a plausible per se conspiracy: Homie did not adequately allege that the commission filter rule was the product of a coordinated agreement among competitors, as opposed to a unilateral NAR policy decision.

3. No antitrust injury: Homie failed to plausibly allege that the commission filter rule — rather than other market factors — caused its competitive harm.

The dismissal was with prejudice, meaning Homie cannot refile the same claims in district court. The only path forward was an appeal to the Tenth Circuit, which Homie filed on August 22, 2025.

The 10th Circuit Oral Argument (May 12, 2026)

The three-judge panel that heard oral argument on May 12 included Judges Timothy M. Tymkovich and Michael R. Murphy. According to reporting by Law360 and MLex, the panel expressed skepticism about Homie's core legal theory — specifically, whether the commission filter rule can be characterized as a per se illegal conspiracy under the Sherman Act.

The judges' skepticism centered on a fundamental antitrust question: is the commission filter rule a product of horizontal conspiracy among competing brokers, or is it simply a unilateral feature of NAR's MLS platform? Per se condemnation under the Sherman Act requires proof of a horizontal agreement among competitors. If the rule is merely a NAR platform feature — even one that has anticompetitive effects — it may only be challengeable under the more forgiving "rule of reason" standard, which requires a full market analysis and is much harder for plaintiffs to win.

Homie's counsel argued that the rule functions as a per se group boycott because it was adopted through NAR's rule-making process, which involves participation by competing brokerages, and because it was enforced through MLS membership requirements that all brokers must accept. The defendants countered that NAR's rule-making is a legitimate association activity and that the commission filter rule is a neutral tool that agents can use or ignore.

Why This Case Matters Beyond Homie

The Homie v. NAR appeal is the first appellate test of whether NAR's commission filter rule is independently actionable as a Sherman Act conspiracy, separate from the buyer-broker commission rules that were the subject of the Sitzer/Burnett verdict and the March 2024 NAR settlement.

The NAR settlement required NAR to eliminate the rule requiring sellers to offer buyer-broker compensation through the MLS. But it did not eliminate the commission filter rule — the tool that allows agents to sort listings by how much buyer-broker compensation is offered. Critics of the settlement argued at the time that this omission left a key steering mechanism in place. Homie's case is, in effect, a direct challenge to that omission.

A ruling in Homie's favor would:

• Revive the case and send it back to the district court for further proceedings under the per se or rule of reason standard

• Signal that the commission filter rule is a separate antitrust vulnerability that the NAR settlement did not address

• Encourage similar challenges from other discount brokerages in circuits that have not yet addressed the issue

A ruling against Homie would:

• Confirm that the district court's per se rejection was correct and that the commission filter rule is not independently actionable

• Provide NAR and large brokerages with a strong precedent against future commission filter rule challenges

• Effectively close the post-settlement antitrust window that Homie tried to open

The Broader Context: Discount Brokerages After Sitzer/Burnett

The Sitzer/Burnett verdict and the NAR settlement were widely expected to accelerate the growth of discount and flat-fee brokerages by eliminating the mandatory buyer-broker commission offer. Two years later, the picture is more complicated.

Traditional brokerages have adapted by emphasizing buyer representation agreements and the value of professional representation, and many buyers have continued to pay buyer-broker commissions voluntarily. Meanwhile, several discount brokerages — including Homie itself, which significantly scaled back its operations in 2023 before filing suit — have struggled to convert the legal victory into market share gains.

The Homie case reflects a broader argument among discount brokerage advocates: that the structural tools enabling steering remain in place even after the settlement, and that further litigation is necessary to dismantle them.

What to Watch

The Tenth Circuit's decision is expected within three to six months of the May 12 oral argument — placing the likely ruling window between August and November 2026. Key questions to watch:

1. Standard of review: Will the panel apply per se or rule of reason analysis? If the panel rules that rule of reason applies, it could affirm the dismissal while still leaving the door open for a better-pleaded complaint.

2. Statute of limitations ruling: If the panel finds the claims time-barred, the per se/rule of reason question becomes moot — a narrower ruling that would not create precedent on the merits.

3. NAR's response: NAR has not publicly commented on the 10th Circuit argument. Any statement from NAR General Counsel Katie Johnson or CEO Nykia Wright would signal how seriously NAR views the appeal.

4. Amicus briefs: Watch for amicus filings from the Department of Justice Antitrust Division or the FTC, either of which could signal federal interest in the commission filter rule question.

What This Means for Buyers, Sellers, and Agents

For buyers: If the 10th Circuit revives the case, it could eventually lead to elimination of the commission filter rule from MLS platforms — making it harder for agents to sort listings by commission and potentially reducing steering incentives. In the near term, the appeal has no effect on how MLS platforms operate. For sellers: A ruling in Homie's favor would strengthen the argument that the post-settlement market still contains structural anticompetitive features, which could support future claims for damages by sellers who paid inflated commissions after the Sitzer/Burnett period. For discount and flat-fee agents: The Homie case is the most direct appellate challenge to the commission filter rule currently pending. A favorable ruling would validate the legal theory that discount brokerages have been harmed by MLS steering tools and could open the door to damages claims.

Sources

• Law360: Brokerage Urges 10th Circ. To Revive NAR Antitrust Challenge (May 12, 2026)

• MLex: Utah Brokerage's Antitrust Challenge to NAR Rules Questioned by US Appeals Court Judge (May 12, 2026)

• HousingWire: NAR, Brokerages Dismissed from Homie Commission Lawsuit (July 16, 2025)

• Reuters: National Realtors Group Defeats Utah Brokerage's Antitrust Lawsuit (July 16, 2025)

• Inman: NAR Defeats Discount Brokerage Homie in Antitrust Lawsuit (July 16, 2025)

• Salt Lake Tribune: Utah-Based Homie Lost Its Lawsuit Blaming Real Estate Industry — Now It's Appealing (August 22, 2025)

• Justia: District Court Memorandum Decision (July 15, 2025)

Image Credit: Nano Banana

PropertyPleadings.com tracks real estate antitrust litigation and provides analysis for buyers, sellers, agents, and legal professionals. This post is for informational purposes only and does not constitute legal advice.