Appeals courtroom will let DOJ communicate in REX case

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The U.S. Division of Justice’s multi-front struggle in opposition to sure Nationwide Affiliation of Realtors guidelines is formally heading to an appeals courtroom this month.

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On Jan. 31, the U.S. Courtroom of Appeals for the Ninth Circuit granted the antitrust enforcer’s Jan. 8 request to talk at oral arguments in an enchantment filed by now-defunct low cost brokerage REX, also called Actual Property Trade, in litigation in opposition to NAR and actual property big Zillow.

Oral arguments within the case are scheduled for Feb. 13. The courtroom has allotted 20 minutes to every facet and the DOJ could have a further 5 minutes to talk on high of that point, based on the courtroom’s Friday order.

On Feb. 3, Alice A. Wang, counsel to the assistant legal professional basic on the DOJ’s Antitrust Division, acknowledged the order and mentioned she would seem on the listening to, which is able to happen at a courthouse in Honolulu.

Wang wrote the Jan. 8 movement requesting the time to talk. She additionally wrote an amicus temporary the DOJ beforehand submitted within the case in June in help of neither social gathering, with out taking a place on the case’s final end result.

“Instead, the United States explained that, although the district court appeared to have a limited view of when optional association rules can represent concerted action under Section 1 of the Sherman Act, there are additional ways that optional rules constitute concerted action that the court did not appear to consider,” Wang wrote in the movement.

“The United States thus urged this Court to vacate and remand the case for the district court to apply the proper legal framework to the evidence in this case.”

The movement famous that not one of the events oppose the DOJ’s request for 5 minutes, however Zillow and NAR thought the 5 minutes ought to come out of REX’s time to talk whereas REX requested the courtroom so as to add on the DOJ’s time with out affecting the already-allotted 20 minutes per facet. The courtroom agreed with REX.

The DOJ’s June amicus temporary took intention at NAR’s non-obligatory “no-commingling” rule, which, when adopted by an MLS, requires brokerage web sites to separate shows of MLS listings from non-MLS listings. As a result of REX didn’t use MLSs for many of its existence, REX’s swimsuit alleges that this led to restricted visibility of REX’s listings on Zillow and the rule is subsequently anti-competitive.

REX’s antitrust claims in opposition to NAR and Zillow have been thrown out earlier than trial, REX misplaced on its remaining claims at trial, after which the brokerage was subsequently denied a request for a retrial. REX is interesting that latter ruling.

In response to the DOJ’s amicus temporary, the “no-commingling” rule’s “optional nature” doesn’t forestall it from doubtlessly being anti-competitive, and the courtroom choice denying a retrial didn’t totally take into accounts that associations like NAR might have circumvented antitrust oversight by enacting such non-obligatory guidelines.

The DOJ additional argued that Supreme Courtroom precedent has proven non-obligatory guidelines might contain “concerted action” that may make these guidelines “mandatory in practice” and that the courtroom ought to vacate the district courtroom’s denial of a retrial in order that the decrease courtroom totally considers REX’s argument that the non-obligatory rule nonetheless invited NAR, MLSs and Zillow “to participate in a common plan.”

Whether or not the appeals courtroom will agree stays to be seen.

E-mail Andrea V. Brambila.

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