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Online Real Estate Platforms REX and Zillow Spar Over Extent of Discovery in Antitrust Suit

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On Tuesday, defendant Zillow Inc., a online real-estate marketplace or aggregator site for home sales, resisted Real Estate Exchange Inc.’s (REX) discovery demands for certain listings-related data. The responsive brief says that REX seeks data relating to for-sale-by-owner (FSBO) listings on Zillow’s websites, which it claims is “clearly irrelevant” to REX’s antitrust claims as its market definition is limited to “brokered” transactions.

The antitrust suit dates to 2021 when REX claimed the trade association the National Association of Realtors (NAR) and Zillow colluded to make it harder for home buyers to find non-NAR endorsed listings. Allegedly, their agreement and accompanying conduct to relegate non-NAR listings to a little seen tab on Zillow’s website resulted in reduced REX listing traffic and transactions.

By way of motivation, the plaintiff explained that NAR views its progressive model, which aims to drive realtor commissions down and save consumers money, as a threat.

After the Western District of Washington allowed most claims, including REX’s federal antitrust claims against Zillow and NAR to proceed, it dismissed NAR’s counterclaims. Since then, the parties have waded into discovery.

Zillow’s opposition describes REX’s “numerous discovery requests for listings-related data” as “massively overbroad and immensely burdensome.” Although Zillow agreed to produce data relating to hundreds of metropolitan areas from 2017 to the present, in addition to visitor viewing data, and despite the parties’ “extensive meeting and conferring,” they have reached an impasse on the FSBO data issue.

Zillow claims that REX’s request  is clearly outside the scope of the litigation, as the sought data sets are irrelevant to assessing harm in the market “brokerage services,” which on its face excludes FSBOs.

Further, Zillow argues that REX’s request is “overly burdensome for Zillow to produce and disproportionate to the issues in the case.” The opposition claims that gathering the requested data would involve multiple Zillow employees and consumer several days of their time.

The case is before Judge Thomas S. Zilly.  

REX is represented by Foster Garvey PC, McCarty Law PLLC, and Lehotsky Keller LLP. Zillow is represented by Orrick, Herrington & Sutcliffe LLP and NAR by Quinn Emanuel Urquhart & Sullivan LLP.

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