"The Antitrust Education Project wrote that the Court should review the lower court's ruling, which found that an agreement to impose a non-binding rule cannot constitute an agreement that violates the Sherman Antitrust Act. The organization argues that the decision deepens the existing split among the Circuit Courts of Appeals and it departs from settled antitrust cases, as well as the consumer welfare standard."
"They argue that adopting or promoting an optional rule could still count as part of a conspiracy. They also say the courts overlooked the idea that if a company later agrees to or acts in line with an existing agreement, it can become part of it. This ties back to REX's claim that Zillow joined the alleged conspiracy when it redesigned its website to follow the no-commingling rule."
"The case presents a fitting opportunity to do so not only because of the central role that the housing industry plays in the life of our nation, but also given that the decision below presents a textbook example of a court falling into error by seeking to protect competitors rather than consumers, and stifling innovation and new entry in order to shelter legacy market participants, the brief states."
Judge Thomas Zilly dismissed REX's antitrust claims in summary judgment. The Ninth Circuit affirmed that dismissal and denied rehearing, prompting REX to file a Supreme Court petition. The Antitrust Education Project and CAARE filed amici urging the Supreme Court to review whether an agreement to impose a non-binding rule can violate the Sherman Antitrust Act. The amici contend the lower-court ruling deepens circuit splits, departs from settled antitrust law and the consumer welfare standard, and conflates the existence of an agreement with its effectiveness. They argue promoting optional rules or subsequent alignment can form part of a conspiracy and that upholding the ruling would protect competitors and stifle innovation.
Read at www.housingwire.com
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