Having finally reviewed the government's opposition brief, I thought I'd share my two main observations with the group here.
First, while it may not prove fatal at this stage, it would appear that the amended complaint is thin on the subject of present adverse effects. More on this when I summarize last week's status hearing, but suffice it to say, it was difficult for the DOJ to make specific allegations regarding how competition has been harmed, because the amended ILD rule was promulgated around the time the initial complaint was filed. Thus there isn't much of a factual record here to draw from. Even if the DOJ survives the motion to dismiss, this issue will likely return.
Second, I was taken by the following statement by the DOJ, which appears about half-way into its brief: "Effective competition in the real estate marketplace depends on having access to - and the ability to show customers - virtually all listings of homes for sale." In a way, this is one of - if not the - central principles being advocated by the DOJ. A lot will rest on the government's ability to convince the court of this proposition.
Again, Judge Filip has taken the motion under advisement, and could rule at any time.