In its ongoing antitrust lawsuit against the National Association of Realtors (NAR), Trulia and Zillow, REX Real Estate recorded a win last Tuesday when U.S. District Court Judge Thomas Zilly approved REX’s request to question Zillow CEO Rich Barton.
Zillow filed a motion for a protective order for Barton on April 21. In the filing, Zillow argued that REX’s request should be denied as Barton doesn’t have “unique, non-repetitive, firsthand knowledge relevant” to Project Bookshelf, the codename for Zillow’s internet data exchange (IDX) and multiple listing service policies.
“The apex doctrine is designed to protect against precisely the tactics that Plaintiff REX — Real Estate Exchange Inc. is attempting to engage in here — abusing the discovery process to attempt to reach an apex official that has no unique, non-duplicative, firsthand knowledge of the facts at issue in this case without first exhausting any and all less intrusive means of getting the information it purports to seek,” the motion reads.
In addition, attorneys for Zillow noted that REX already has two other depositions with high-level Zillow executives who have more in-depth knowledge of Project Bookshelf scheduled.
“As Zillow has explained repeatedly, in interrogatory responses and multiple meet-and-confers, Mr. Barton has no unique, non-duplicative personal knowledge about Project Bookshelf,” the motion stated. “The Project began before Mr. Barton was CEO, and Plaintiff already is scheduled, within the next two weeks, to depose two other high-level Zillow employees who were directly involved in that Project.”
According to Zilly’s ruling, Barton is required to attend a three-hour deposition within the next 30 days and it must take place over Zoom. In addition, Zillow, NAR, Trulia and REX have until May 16 to “meet and confer regarding possible amendments to the current motion deadlines and briefing schedule and submit a proposal to the court within the next week.”
Zilly also requested that REX notify the court of what party or parties are funding the litigation by May 2. REX ceased its brokerage operations in mid-May of 2022.
Zillow did not wish to comment on this development in the case and REX had not returned a request for comment at the time of publication.
REX filed the antitrust lawsuit in March 2021, alleging that changes made to Zillow’s website “unfairly hides certain listings, shrinking their exposure and diminishing competition among real estate brokers.”
In January 2021, Zillow began moving homes out of its initial search results for sellers who chose not to use agents adhering to the NAR and local multiple listing service (MLS) practices.
In a press release at the time, REX said it was looking to break “the stranglehold that REX believes the NAR and its members have held over consumers for generations, resulting in fees that are two to three times higher than in most developed countries. REX filed the lawsuit after the company’s clients complained about the second-class treatment that non-cartel homes were receiving.”
In January 2022, NAR filed a countersuit claiming that REX uses false advertising and misleading claims to deceive consumers in violation of the Lanham Act, but the countersuit was dismissed in late April 2022.
Since then, REX, Zillow and NAR have gone back and forth with filing various motions to compel during the discovery phase of the trial, but it appears that will all come to a head this fall.
A jury trial for the case is scheduled for September 18, 2023.