“Facilitation” Is Not an Exclusionary Agreement: Continuing-Conspiracy Tolling Requires a Plausible Conspiracy in the Challenged Rules Themselves

I. Introduction

Homie Technology, Inc. (“Homie”) entered Utah’s residential real estate brokerage market in 2015 as a “discount broker,” offering lower commissions and technology-assisted services. After early growth, Homie alleged its business collapsed because local real estate agents and brokers “steered” buyers away from Homie-listed properties—refusing to show those homes unless Homie raised buyer-agent commissions. Homie characterized this as a group boycott.

Rather than sue the alleged steering brokers directly, Homie sued the National Association of Realtors (“NAR”) and several large brokerages (the “Brokerage Defendants”), asserting that NAR’s MLS-related rules enabled and reflected an anticompetitive conspiracy in violation of § 1 of the Sherman Act and the Utah Antitrust Act.

The district court dismissed, holding the antitrust claims were time-barred and, alternatively, that Homie failed to allege antitrust injury. The Tenth Circuit affirmed on limitations grounds alone. The central issue on appeal was whether Homie could invoke the “continuing conspiracy” (continuing violation) doctrine to avoid the four-year limitations period by tying more recent “steering” injuries (and NAR’s annual reaffirmations/enforcement of rules) to older rule promulgations.

II. Summary of the Opinion

The Tenth Circuit held Homie’s antitrust claims accrued no later than 2019 but were filed in 2024—outside the four-year limitations period under 15 U.S.C. § 15b and Utah Code Ann. § 76-16-503. The court rejected Homie’s attempt to invoke the continuing conspiracy exception because Homie did not plausibly allege that the NAR rules themselves embodied an agreement to exclude discount entrants. Allegations that rules “facilitated” later steering were insufficient to plead a single continuing conspiracy.

Accordingly:

• Steering/boycott conduct by unidentified NAR-member brokers could not “continue” a broader NAR conspiracy that Homie failed to plausibly plead.
• NAR’s annual reaffirmation and enforcement of the challenged rules could not renew or continue a “non-existent conspiracy.”
• Because limitations was dispositive, the court did not reach antitrust injury/standing.

III. Analysis

A. Precedents Cited and Their Role

B. Legal Reasoning

1. Limitations as the dispositive lens

The court began with the four-year statutes of limitation (federal and Utah). Homie did not dispute that claims “based on the NAR rules accrued between 2015 and 2019,” and suit was filed in 2024. That meant the case could proceed only if an exception applied—principally the continuing conspiracy doctrine derived from Zenith Radio Corp. v. Hazeltine Rsch., Inc. and synthesized in the Tenth Circuit by Kaw Valley Elec. Coop. Co. v. Kan. Elec. Power Coop., Inc..

2. The opinion’s key move: separating “rules” from “boycott”

Homie’s tolling theory required pleading a single conspiracy spanning:

• older conduct: NAR’s promulgation of MLS-related rules; and
• newer conduct: steering/boycotts by (unnamed) NAR-member brokers within the limitations period.

The court assumed arguendo that steering/boycotts might be an antitrust violation, but held that such conduct could not “continue” a broader conspiracy unless Homie plausibly alleged that the challenged rules themselves were an agreement to exclude competitors (a refusal-to-deal style objective).

3. Why “facilitation” was not enough

The court treated § 1’s “agreement” requirement as the controlling constraint. Citing Champagne Metals v. Ken-Mac Metals, Inc. (“The essence of a violation ... is the agreement itself.”) and Monsanto Co. v. Spray-Rite Serv. Corp. (“conscious commitment to a common scheme designed to achieve an unlawful objective”), it rejected a rule that would impose liability merely because associational rules could be misused.

The court’s concern was structural: if “facilitation” sufficed, trade associations could be held liable for independent member misconduct that was neither agreed upon nor contemplated by the rules—effectively collapsing the distinction between (i) an association-wide agreement to boycott and (ii) member-level opportunism.

4. Plausibility was undercut by Homie’s own pleaded history

A notable feature of the opinion is its use of Homie’s allegations of early success to negate plausibility of an inherently exclusionary agreement. Homie alleged:

• it joined NAR and the relevant MLS and competed beginning in 2015;
• it was “among the five largest brokerages by market share” at times between 2017 and 2021; and
• its listings allegedly sold faster and for higher prices than comparable homes sold by traditional agents.

Against that backdrop, the court concluded the claim that the rules were inherently “exclusionary” did not “square” with the narrative (Somers v. Apple, Inc.). This reasoning is less about proving the rules procompetitive and more about evaluating whether it is plausible that the rules themselves constituted an agreement designed to exclude discount entrants, as opposed to a set of MLS practices later exploited by some actors.

5. “Necessary and direct consequence” vs. mere foreseeability

Homie sought to infer exclusionary intent by arguing boycotts were foreseeable and intended effects of the rules. The court responded with Anderson v. Shipowners' Ass'n of Pac. Coast: intent may be inferred when exclusion is the “necessary and direct consequence” of the rules—not merely a foreseeable possibility.

The court contrasted Eastern States Retail Lumber Dealers' Association v. United States, where a blacklist had an admitted and singular purpose—to induce members to withhold patronage. Here, by contrast, MLS rules about offers of compensation and filtering lacked the same inherent, singular exclusionary “mechanism,” and NAR’s own Code of Ethics purportedly prohibited steering based solely on commission dissatisfaction.

6. Annual reaffirmations and enforcement cannot “renew” a non-existent conspiracy

Homie also argued that NAR’s annual reaffirmations and enforcement were distinct acts within the limitations period. The court relied on Champagne Metals v. Ken-Mac Metals, Inc. for the proposition that such acts can matter only if they manifest commitment to “renewing and enforcing” an anticompetitive agreement. Having found no plausible exclusionary agreement in the rules, reaffirmation/enforcement could not resurrect limitations: “Renewing and enforcing rules cannot continue a conspiracy that does not exist.”

The court distinguished Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, where there was an established exclusionary conspiracy and the only question was whether ongoing enforcement continued it. Homie lacked the predicate: a plausibly pleaded exclusionary conspiracy in the challenged rules.

C. Impact

1. A tightening of “continuing conspiracy” pleading in association-rule challenges

The opinion strengthens a gatekeeping principle for time-barred antitrust claims against trade associations: the plaintiff must plausibly allege that the challenged rules themselves embody an exclusionary agreement (or at least conduct whose exclusionary harm is a necessary and direct consequence). It is not enough to plead that rules made later private boycotts easier.

2. Practical consequence: plaintiffs must sue the “boycott” as a boycott (or tie it to the association with more specificity)

Homie illustrates a litigation hazard: when the alleged within-limitations misconduct is performed by unnamed third parties, the plaintiff must plausibly connect that conduct to the defendants through an agreement, not merely a shared membership structure. Future plaintiffs will likely:

• name and plead agreements with actual steering/boycott participants; and/or
• plead specific facts showing association leadership or named firms coordinated, endorsed, or directed the alleged steering; and/or
• challenge rules that more explicitly condition participation on refusing to deal (closer to Fashion Originators' Guild of Am. v. Fed. Trade Comm'n).

3. Statute of limitations becomes a first-order defense in MLS-rule litigation

The decision encourages early dispositive motions focused on accrual and the nature of the alleged conspiracy. For older “rule adoption” theories, defendants can press that later market harms are downstream effects, not new conspiratorial acts—unless plaintiffs plead a plausible continuing exclusionary agreement.

4. Doctrinal signaling: refusal-to-deal framing matters

The court explicitly treated the relevant continuing-violation framework as “refusal to deal” and required allegations that the rules contemplated refusals to deal. This will influence how litigants plead and how courts categorize MLS/association restraints for limitations purposes.

IV. Complex Concepts Simplified

• § 1 “agreement” requirement: Section 1 targets concerted action—an actual “contract, combination, or conspiracy.” A plaintiff must plausibly allege a shared plan (“conscious commitment”) to an unlawful objective, not just parallel behavior or a rule that can be misused.
• Accrual and the four-year antitrust limitations period: The clock generally starts when the defendant commits an act that injures the plaintiff’s business. If the challenged act is adopting a rule, accrual typically occurs when the rule injures the plaintiff (often at adoption or application).
• Continuing conspiracy / continuing violation doctrine: If there is a continuing conspiracy, each new overt act that injures the plaintiff can start a new limitations period for damages caused by that act. But the later act must be in furtherance of the same conspiracy—not merely a later harm flowing from an earlier act.
• “Facilitation” vs. “agreement”: A system can make wrongdoing easier without embodying an agreement to do the wrongdoing. The court held facilitation does not substitute for pleading an agreement to exclude competitors.
• Steering: A practice where a buyer’s agent channels clients away from certain properties for reasons other than client preference—here, allegedly because a listing offered a low buyer-agent commission.
• Boycott / refusal to deal: A group boycott occurs when market participants coordinate not to do business with a target. These can be per se unlawful in some settings, but the key here was not the boycott’s merits—it was whether it could be attributed to (and thus extend limitations for) the defendants through a single conspiracy theory.
• Antitrust injury (not reached on appeal): A plaintiff must typically show harm to competition (not merely harm to a competitor). The court affirmed without deciding this issue.

V. Conclusion

Homie Technology v. National Association of Realtors establishes a clear limitations-focused principle in the Tenth Circuit: the continuing conspiracy doctrine cannot salvage time-barred antitrust challenges to trade-association rules absent a plausible allegation that the rules themselves embody an exclusionary agreement (or that exclusion is their necessary and direct consequence). Allegations that association rules merely “facilitated” later steering/boycotts by third parties do not plausibly plead a single continuing conspiracy, and annual reaffirmation/enforcement of such rules cannot renew a conspiracy the complaint fails to plausibly allege in the first place.