Lawyers from the Justice Department’s Antitrust Division filed a request Wednesday to hear oral arguments along with REX, Zillow and NAR in the U.S. Court of Appeals for the Ninth Circuit on February 13.
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The U.S. Department of Justice’s multifaceted battle against certain rules of the National Association of Realtors is likely to reach an appeals court in February.
Antitrust enforcement officials are asking him to speak at oral argument in a lawsuit filed by now-defunct discount brokerage firm REX (also known as Real Estate Exchange) against NAR and real estate giant Zillow.
Oral argument in the case is scheduled for February 13, and the court allotted 20 minutes to each side. On January 8, attorneys for the Justice Department’s Antitrust Division filed a motion asking the U.S. Court of Appeals for the Ninth Circuit to add five minutes to that allotted time.
The Justice Department did not take a position on the ultimate outcome of the case, noting that it filed amicus briefs in June supporting both parties.
“Instead, the United States argues that while district courts appear to have a limited view of when voluntary association rules can represent concerted action under Section 1 of the Sherman Act, “We explained that there are additional ways in which any rule we made constitutes concerted action, which we do not appear to have considered,” Justice Department lawyers said in the motion.
“Accordingly, the United States asks this court to reverse and remand this case so that the district court applies the appropriate legal framework to the evidence in this case.”
Federal officials believed their participation would be “helpful to the court,” adding that the Justice Department “has a grave interest in the proper application of the law.” [federal antitrust] law” and how it applies to the real estate industry.
The motion noted that while none of the parties opposed the Justice Department’s five-minute request, there were disagreements over where the five minutes should start.
According to the filing, Zillow and NAR argue that five minutes should be added to REX’s speaking time, while REX argues that the Justice Department’s time should be added without affecting both parties’ time. There is. However, the filing states that REX may agree to two alternatives. That would give REX 20 minutes, the Department of Justice five minutes, and Zillow and NAR a combined 25 minutes. Alternatively, REX would cede five of the 20 minutes to have the Justice Department participate, the latter “not to REX’s preference.”
The Justice Department’s June court brief takes aim at NAR’s voluntary “no-mixing” rule that, if adopted by an MLS, would require intermediary websites to display MLS-listed products and non-MLS-listed products separately. has been established. Because REX did not use the MLS for most of its existence, REX’s lawsuit alleges that this limits the visibility of REX’s listings on Zillow and that the rule is therefore anticompetitive.
REX’s antitrust claims against NAR and Zillow were dismissed before trial, REX lost at trial on the remaining claims, and the intermediary’s subsequent request for retrial was denied. REX is appealing the latter ruling.
According to the Justice Department’s amicus brief, the “arbitrary nature” of the “no-mixing” rule does not preclude it from being potentially anticompetitive, and the court’s decision to deny reconsideration makes it more likely that the NAR-like It says the company did not give sufficient consideration to the possibility that the association was evading antitrust law oversight. Establish any such rules.
The Justice Department further notes that Supreme Court precedent indicates that voluntary rules can include “concerted action” that makes those rules “actually mandatory” and that lower courts have ruled that REX’s He argued that in order to fully consider the claims, the court should reverse the district court’s refusal to retry the case. Nevertheless, the optional rule encouraged NAR, MLS, and Zillow to “participate in a common plan.”
Read the motion (reload the page if the document is not visible):
Email Andrea V. Brambilla.
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