Eytalis MLS Membership Appeal: What the Ruling Decides

The Fifth Circuit upheld dismissal in the Eytalis MLS membership appeal on September 9, 2026. Its unpublished opinion found inadequate allegations of antitrust injury and treated an unbriefed Clayton Act challenge as forfeited. The decision does not establish nationwide approval of every MLS membership requirement.

The access dispute behind the three-way agreement

Luz de Amor Eytalis, a Wichita Falls, Texas, broker, alleged that association membership was unlawfully required for her and her sponsored agents to access multiple listing services. Her complaint challenged membership in the National Association of Realtors (NAR), the Texas Association of Realtors and the Wichita Falls Association of Realtors, along with dues obligations affecting affiliated agents. These are allegations summarized in the magistrate judge’s June 9, 2025, recommendation, not facts established at trial.

Two requirements need separating. NAR’s three-way agreement links local, state and national association membership. Whether an MLS admits nonmembers is a distinct access question. In its February 20, 2025, policy explanation, NAR said association-owned MLSs could permit nonmember participation through local decisions. NAR is a defendant here; its explanation supplies policy context, not an independent legal assessment.

For leaders reviewing MLS access and associations, the distinction matters: identifying the membership structure does not, by itself, describe a particular MLS’s admission terms.

Why the Sherman Act allegations failed

The panel found the third amended complaint too conclusory to allege antitrust injury, a necessary element of antitrust standing under Sherman Act § 1. It was reviewing a dismissal for failure to state a claim under Rule 12(b)(6).

A business expense or lost revenue alone does not establish antitrust injury. The injury must arise from the anticompetitive aspect of the challenged conduct and be the kind antitrust law protects against. The panel’s cited authority, Rx Solutions v. Caremark, decided January 14, 2026, distinguishes this requirement from constitutional standing—the basic ability to invoke federal judicial power.

The lower-court recommendation identifies the gap in Eytalis’s allegations: she described her dues burden without adequately connecting it to competitive harm in a relevant market. The magistrate also identified defects in the allegations about market definition, an agreement restraining trade and unlawful tying.

Consider a hypothetical broker relying on an invoice to support a claim. The invoice documents a cost; calling that cost “anticompetitive” does not explain how the challenged practice harmed competition or caused an antitrust injury. Further factual allegations would need to make that connection, and their sufficiency would still require legal analysis.

Why the Clayton Act challenge was forfeited

The panel expressly identified the Clayton Act challenge as forfeited because Eytalis did not brief it. The provision at issue was Clayton Act § 3, codified at 15 U.S.C. § 14.

The lower-court recommendation had reasoned that the provision concerns commodities rather than the MLS services at issue. The appellate disposition left that determination undisturbed, but the panel’s stated reason was the briefing failure. That is different from a fresh appellate analysis of the challenge’s merits.

State claims were dismissed without prejudice

The related breach-of-contract and unjust-enrichment claims followed a different route. Judge Reed O’Connor’s July 22, 2025, order expressly dismissed the state-law claims without prejudice.

Supplemental jurisdiction lets a federal court hear sufficiently related state claims alongside claims within its original jurisdiction. Under 28 U.S.C. § 1367(c)(3), the court may decline to continue doing so after dismissing all claims over which it had original jurisdiction. That choice is discretionary; dismissal of the federal claims does not automatically require dismissal of the state claims.

The Fifth Circuit found no abuse of that discretion. It also rejected Eytalis’s challenge to the district judge’s review of her objections. The judge had stated that he independently reviewed the contested portions, and the panel said he did not need to repeat the magistrate’s reasoning.

The state claims’ substantive merits therefore remained undecided in this federal proceeding. “Without prejudice” should not be read as either a finding that the contracts were lawful or a prediction that a later state-court claim would succeed.

What the unpublished designation means

Fifth Circuit Rule 47.5.4, in the court’s compilation amended through December 2025, says unpublished opinions issued on or after January 1, 1996, generally are not precedent. It preserves limited exceptions, including claim preclusion, issue preclusion and law of the case—doctrines governing the effect of earlier decisions on later litigation.

The rule allows citation of unpublished opinions. Their reasoning can be offered to another court, but citation does not make them generally binding precedent.

For this case and other housing court developments, distinguish the judgment’s effect on the litigants from the authority its reasoning carries in other cases.

What brokerage leaders should check locally

To assess what the ruling means for a brokerage, start with its governing access terms. Consider two hypothetical MLSs: one admits qualified nonmembers; another conditions access on association membership. The three-way membership structure alone cannot tell a broker which arrangement applies.

For a review of the local arrangement, assemble:

• The participation agreement and membership provisions effective for the period in question.
• The dues schedule and rules covering affiliated or inactive agents.
• Written access-denial or termination notices, identifying who made the decision.
• Facts about available alternatives and the competitive effects alleged.

These materials support an assessment of a particular arrangement; collecting them does not establish its legality. Before relying on Eytalis to justify an access decision, ask antitrust counsel to connect the operative documents, local market facts and any preserved legal claims.