Real Estate Exchange, Inc., a Delaware Corporation v. Zillow Group, Inc., a Washington Corporation, et al.

Around ten years ago this Court granted certiorari “to resolve ‘whether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, is sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act.’” Visa Inc. v. Osborn, 137 S. Ct. 289, 289 (2016) (citations omitted). “[H]owever, petitioner chose to rely on a different argument in their merits briefing” so the writ was dismissed as improvidently granted. Id. at 289–90 (citation omitted). Since then, the circuit split has deepened on whether a business association’s rules are a conspiracy subject to Section 1 of the Sherman Act. This appeal presents an effective vehicle for addressing a question that encompasses the granted question in Visa Inc. v. Osborn: Whether a business association that publishes a rule for its members can immunize the rule, and members’ adherence to it, from being considered a conspiracy subject to Sherman Act Section 1 by making the rule optional—as held by the Ninth Circuit below and the Tenth Circuit—or whether an association’s rule can be a conspiracy even if optional—as held by the First, Third, and Fifth Circuits and supported by the Department of Justice and this Court’s precedent.