Friday, December 1, 2006

USA v. NAR - Status hearing (written 7/14/2006)

The material points from Tuesday's status hearing before the Magistrate.

  • Judge Filip has still not ruled on NAR's motion to dismiss
  • USA must provide NAR, on a rolling basis, with a list of all MLS areas that the government intends to offer proof of anticompetitive effects resulting from the previous and/or revised ILD policies, but no later than October 16, 2006
  • USA has not agreed to refrain from challenging the technically outdated ILD policy that preceded the current ILD policy. Magistrate Judge Denlow opined that the litigation should focus on the current, suspended policy
  • To defend itself, NAR (with respect to demonstrating no anticompetitive effects and/or one or more procompetitive effects of the ILD) intends to compare challenged markets with 'control markets' where the ILD presumably was never implemented.
  • The Court refused at this time to limit the number of markets the government can present in its case. The government is of course concerned that if it is limited to only a handful of markets, the defendant could always argue that the presence of any anticompetitive effects are simply aberrations not experienced in most markets.
  • NAR has until April 15, 2007 to disclose procompetitive justifications, to be done on a rolling basis
  • The government has until June 15, 2007 to complete discovery on the procompetitive justifications offered by NAR.
  • Expert discovery will follow, meaning that June 15, 2007 is the fact discovery cutoff. NAR cautioned that its expert testimony in this case will be substantial
  • With respect to depositions, the Court did not set any limitations, but urged the parties to be reasonable
  • Next status hearing will be October 24, 2006 at 10:15am
  • Both attorneys stated that there had been no settlement discussions

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