McDaniel

Opinion by Judge KLEINFELD; Concurrence by Judge PREGERSON.

McDaniel was denied certification as an “MAI appraiser” by the Appraisal Institute, a private nonprofit professional association. The only issue in this appeal is whether he established a genuine issue of material fact, in his Sherman Act, section 1 antitrust claim.

Facts

McDaniel has repeatedly sought certification as a Member of the American Institute of Real Estate Appraisers. An appraiser does not have to be a Member of the Appraisal Institute in order to do business. But, according to McDaniel’s evidence, MAI appraisers get over 90% of the commercial business in Pima County, Arizona, where he works. The non-MAI appraisers like McDaniel are left mostly with less lucrative residential appraisals.

The Appraisal Institute is a private nonprofit group which publishes materials on appraising, provides continuing education for appraisers, and certifies people whom it judges to be very highly competent by its standards. To be an MAI appraiser, one must complete a continuing education program, pass a comprehensive examination, demonstrate at least five years of general appraisal experience, obtain credit for three years…

concurring in the result.

I concur in the result. I write separately because, unlike the majority, I believe that McDaniel has demonstrated that the Appraisal Institute (“Institute”) has effectively excluded him from the product market of real estate appraisals. The majority concludes that because McDaniel is not completely barred from the product market, the Institute does not have sufficient market power to violate Sherman Act § 1. Majority Op. at 424. All that is required for a § 1 violation, however, is an effective exclusion from the product market. “[Wjhen the cooperating group possesses sufficient market power that a nonmember can no longer compete effectively with members, the restraint must be found to have sufficient adverse competitive impact to violate Section 1.” United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1373 (5th Cir.1980); see also Silver v. New York Stock Exch., 373 U.S. 341, 348 , 83 S.Ct. 1246, 1252 , 10 L.Ed.2d 389 (1963) (noting that a stock broker is effectively excluded from the product market when his nonadmission to a listing service deprives him of a significant volume of trading). The Institute only accepts between two and seven percent of…