Antitrust Law Daily Wrap Up, ANTITRUST—S.D. Fla.: ‘Shotgun pleading’ of antitrust allegations against HomeServices of America dismissed, (Jul 16, 2025)

By Justin Marcus Smith, J.D.

The court expressed doubts about the home buyers’ apparent approach of making “identical” allegations against different defendants, in various district courts, arising from the “same incidents”.

A group of home buyers could not proceed with assorted antitrust and other claims and requests for relief against realty brokers HomeServices of America, Inc. and Douglas Elliman, Inc. held the federal district court in Miami. The court dismissed the home buyers’ request for injunctive relief, with prejudice, because they had no direct injury where home sellers had paid broker commissions. The court also dismissed the home buyers’ antitrust, consumer protection, and unjust enrichment causes of action for a variety of “shotgun pleading” deficiencies. The sole allegation against Douglas Elliman, Inc., that it participated in MLS committee governance, was conclusory. The court also raised concerns about the filing of “identical” lawsuits in multiple district courts. The court warned that a future dismissal of the antitrust, consumer protection, and unjust enrichment causes of action might be ordered with prejudice if amendment fails to cure the noted pleading deficiencies (Lutz v. HomeServices of America, Inc., No. 4:24-cv-10040-KMM (S.D. Fla. July 15, 2025)).

Background. Consumers who bought homes on a National Association of retailers (NAR) -affiliated multiple listing service (MLS) complained that HomeServices of America, Inc., BHH Affiliates, LLC, and HSF Affiliates LLC (collectively, HomeServices), and brokerage Douglas Elliman, Inc., all members of NAR, illegally conspired to suppress price competition for buyer-agent services. The home buyers alleged the defendants’ conduct caused a putative class of home buyers to pay inflated commissions for broker services, misrepresented as free, and to pay inflated home prices, for inferior quality broker services.

The consumers asserted four causes of action: (1) injunctive and equitable relief under 15 U.S.C. 1; (2) violation of state antitrust statutes; (3) violation of state consumer protection statutes; and (4) unjust enrichment. The court cited four examples of how “[c]ourts across the country have addressed identical or similar issues to those raised in the [second amended complaint].”

The defendants filed a motion to dismiss for putative (1) lack of standing for injunctive relief; (2) untimeliness of state law claims; (3) impermissible shotgun pleading of antitrust and consumer protection claims; (4) lack of standing on certain state law antitrust claims; and (5) dismissal of the unjust enrichment claim.

Standing. The court held the home buyers were not entitled to injunctive relief. In reaching that conclusion, the court noted, first, that the home buyers were only indirect purchasers inasmuch as home sellers paid alleged inflated commissions. The home buyers’ asserted belief that the disputed realtor services were “free and not reflected in the home price” was immaterial because the sellers paid the commissions. Any harm to the buyers was indirect.

Second, the buyers were not efficient enforcers of the antitrust laws. The buyers even appeared to acknowledge this by not asserting a Sherman Act damages claim. In parallel litigation, courts determined that home buyers raising nearly identical concerns lacked antitrust standing. Here, the court found the sellers would have had direct injuries and would therefore be better suited to seek antitrust relief. The home buyers in this matter did not have Sherman Act antitrust standing.

In addition, a NAR settlement made the home buyers’ request for injunctive relief moot. The court said it was not convinced that home buyers would have different interests with respect to the NAR settlement. Differences between buyers and sellers were de minimus with respect to the threat of future injury, and anything the Department of Justice had to say about the NAR settlement would have no bearing on any threat of future injury to home buyers.

The court dismissed the buyers’ request for injunctive relief accordingly, and with prejudice, because it did not appear that any amendment of would cure the standing and mootness problems the court identified here.

Shotgun pleading. The court held the buyers’ claims under the antitrust laws and consumer-protection laws of 25 or more jurisdictions amounted to “textbook” shotgun pleading. The home buyers failed to separate each cause of action or claim for relief into discrete counts. The relief sought under state antitrust statutes failed to allege satisfaction of the elements of any particular statute, that the statutes were sufficiently similar to support a nationwide class, or that the acts of any individual defendant warranted relief.

The count for antitrust damages did not articulate whether the home buyers were entitled to relief under any statute. The sole allegation against Douglas Elliman, that it participated in MLS committee governance, was conclusory.

The consumer protection count was nearly identical, and last, the unjust enrichment count did not designate which statutes or state common law would support equitable relief. The court dismissed the three respective antitrust, consumer protection, and unjust enrichment counts, effectively dismissing the entire complaint, albeit the court dismissed these counts without prejudice.

The court agreed with the defendants’ concerns that the instant claims were “identical” to claims asserted by “by many of these same Plaintiffs, represented by the same counsel” in cases across the country. The court said it was “particularly concerned” with the nearly identical complaint asserting relief against a different defendant in Davis v. Hanna Holdings, Inc., Case No. 2:24-cv-02374-WB, (E.D. Pa.). The court expressed doubt about whether the home buyers were seeking relief against all possibly implicated parties instead of limiting themselves to plausible claims they might bring.

The court also noted that the filing of identical lawsuits in multiple district courts is generally seen as “abusive” and “wasteful” of judicial resources. The instant undeveloped assertions of joint-and-several liability were “particularly troubling” where the home buyers and their counsel were also seeking relief from different defendants in other courts but arising from the “same incidents” alleged in the second amended complaint. The court advised the plaintiffs to amend the dismissed antitrust, consumer violation, and unjust enrichment accounts appropriately or face any subsequent dismissal of the entire action with prejudice.

The Case is No. 4:24-cv-10040-KMM.

Judge: Moore, K.

Attorneys: Carol Lee O'Keefe (Korein Tillery LLC) for James Lutz. Michael John Holecek (Gibson, Dunn and Crutcher LLP) for Homeservices of America, Inc.

Companies: Homeservices of America, Inc.

Cases: Antitrust FloridaNews