Vertical agreements that protect large market share can be framed as viable claims when they shield a company from competition. The central antitrust issue is whether companies with proprietary data can maintain exclusive control and withhold it from the MLS, particularly after Sitzer/Burnett. Consumer impact is central, including whether withholding listings from Zillow causes confusion or forces consumers to search across many websites. The analysis may consider whether Zillow’s size and reliance by consumers make cutting off listing data harmful. The court may also examine whether Zillow operates like a public utility due to its scale and longevity. The litigation may also serve as a warning to others.
"If these vertical agreements are designed to enhance or protect large market share, which in MRED's case is the vast majority of the MLS listing in Chicagoland, he said. So, if by entering into this relationship with Compass, it is protecting MRED from competition, then that could be a viable claim."
"As Chuck Cain, an attorney and the president of Alliance Solutions, sees the question at the center of the lawsuit as can companies that have data, which they view as proprietary, have exclusive control of that data, or, especially in the world of realty post Sitzer/Burnett, if companies the size of the defendants withhold that data from the MLS, is it an antitrust violation? That is the real question and I have no idea how the courts will look at this, Cain said."
"The defense's position is that consumers are not harmed by withholding listings from Zillow, they just need to go to our website, which is three clicks away, Cain said. But does that then cause confusion for the consumer? And if it devolves to consumers needing to go to 20 websites to see what is actually for sale in a neighborhood, are aggregators entitled to access that data or is the data proprietary?"
"As for Zillow, Cain believes the court will have to examine whether Zillow is so large and relied on by so many consumers nationwide, that cutting off listing data to it causes consumer harm? This then begs the question, is Zillow a public utility? Is it so large and has been around for so many years that it has become effectively some sort of public utility? I don't think that is what Zillow wants to see or hear, but that is how this could go, Cain added."
#antitrust-law #mls-data-access #consumer-harm #real-estate-vertical-agreements #zillow-and-data-withholding
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