Vessel Brokers are Not Real Estate Brokers
On January 21, 2025 the United States District Court for the Southern District of FLorida issued its long anticipated ruling in the
Ya Mon Expeditions Class Action lawsuit against the entire yacht brokerage industry (Ya Mon Expeditions, LLC et. al. v. International
Yacht Brokers Association, Inc., et. al., Case No. 1:24-cv-20805-KMM). The Court found that the Class Action Complaint
failed to state a claim for any violations of the Sherman Act, thus dismissed the Complaint.
As a brief summary, last year, a number of cases were filed against several large yacht brokerage operations, as well as the Yacht Brokers
Association of America (YBAA), the International Yacht Brokers Association (IYBA), as well as Florida and California Yacht Broker Associations.
The Plaintiffs, in this case individuals who sold their boats through these various entities, argues that just like the real estate industry,
the yacht brokers engaged in collusion and antitrust actions to artificially inflate commissions. This case was a progeny of the real estate
class action cases, where Plaintiffs counsel won substantial sums of legal fees for themselves. Riding high on that victory, they tried their
luck with the yacht brokerage industry. However, this time the Court pointed out that there is no parallel between the violations committed by
the real estate industry and the yacht brokerage industry.
The crux of the case could be found in Count I and Count II of the Consolidated Complaint.
Count I can be summarized as conspiracy to fix commissions, while Count II was refusal to deal with anyone who is not represented by a broker.
In support of their argument, the Plaintiffs submitted most conclusory allegations (e.g. facts that are derived from opinion of the Plaintiff,
rather than the reality of the situation) which can be best described as all brokers charge a 10% commission and because they use standard
agreements, which are meant to expediate the process and keep costs down, they must be colluding against the public.
Now for those who have sold or bought their vessels know that the commission can be negotiated. There are several brokerages that even start
at less than 10%, and we have seen deals as low as 1% or no commission at all. But the Court, did not even need to address this point, as the
differences between the real estate cases and the brokerage industry are large. As the Court pointed out, antitrust laws allow trade associations
to make nonbinding recommendations about businesses and products. Evergreen Partnering Grp., Inc. v. Pactiv Corp., 832 F.3d 1, 9 (1st Cir. 2016)
(citing Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 292 (5th Cir. 1988)) Ya Mon Expeditions, LLC et. al. v. International
Yacht Brokers Association, Inc., et. al., Order, Case No. 1:24-cv-20805-KMM, Doc. 237, Pg. 8 (USDC So. Fla. 01/21/2025). The Court then went on
to point out that [w]hile the Complaint alleges that yacht associations promulgate and enforce anticompetitive rules, Plaintiffs simply point
to various non-binding industry practices and norms in concluding that Defendants require yacht sellers to pay artificially inflated broker
commissions and eliminate competition. . Id. ⁋ 199; id. ⁋ 85 (YBAA strongly recommends . . .) (emphasis added); Id. ⁋ 87 (Central Listings
and shared Open Listings are generally shared on a commission basis. . . ) (emphasis added); Id. ⁋ 90 (All shared commission agreements should
be negotiated prior to the submission of any Offer to Purchase. ) (emphasis added); id. ⁋ 96 (Member should cooperate with other Brokers on vessels
listed with him whenever it is in the best interest of the client. ) (emphasis added). Id. at Pg. 5.
The whole case analogies the commission issue to the real estate industry, but with one glaring problem, in the real estate industry, there was
just one way to sell a home, you had to be a member of the National Association of Realtors (NAR ) . In the NAR case, the Court found that the
rules required brokers to list the properties on one MLS website and pay a broker regardless of experience or value. Id. at Pg. 9. Here,
the Complaint is not brought against a centralized trade association and does not involve a blanket unilateral offer of compensation without
regard for the value of services provided. Id. The Court went on to say that Plaintiffs cite to industry standards and non-binding suggestions.
Reply at 2; see also Compl. ⁋ 76 (A form contract . . . illustrates the standard form used in listing transactions . . . [and] provides the boat
owner will pay a commission set as a percentage of the selling price. ) (emphasis added). Relatedly, nothing in the Complaint tends to exclude
the possibility of independent action. Quality Auto Painting Ctr. of Roselle, 917 F.3d at 1267 (quoting Twombly, 550 U.S. at 553-54). Id. at Pg. 10.
While Plaintiff correctly states that adoption of a binding association rule designed to prevent competition is direct evidence of concerted action,
the Complaint does not allege that a binding association rule exists. Id. at Pg. 5-6. In considering concerted refusal to deal claims,
the Sherman Act does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise
his own independent discretion as to parties with whom he will deal. Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248,
1265 (11th Cir. 2015) (citing Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004))." Id. at Pg. 10.
As a standard practice, the Court gave the Plaintiffs 21 days to try to come up with more facts to support their claims of Sherman Act violations.
We will continue to monitor this case, though hopefully Plaintiffs’ counsel has realized that the yacht brokerage industry is not the real estate
slaum dunk they were hoping for. It is actually completely different and within the law. Duty Free Americas, Inc. v. Estee Lauder Companies, Inc.,
797 F.3d 1248, 1265 (11th Cir. 2015).
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