Case 2:18-cv-00584-JMV-JBC Document 52 Filed 03/04/21 Page 1 of 24 PageID: 978
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`Civil Action No. 18-584
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`OPINION
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`Not for Publication
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`EJ MGT LLC,
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`Plaintiff,
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`v.
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`ZILLOW GROUP, INC., and ZILLOW, INC.,
`Defendants.
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`John Michael Vazquez, U.S.D.J.
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`This case concerns antitrust allegations against a market leader in online real estate
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`information. Plaintiff EJ MGT LLC brings this action against Defendants Zillow Group, Inc., and
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`Zillow, Inc. (collectively, “Zillow” or “Defendants”) for conspiracy to restrain trade under the
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`Sherman Act, 15 U.S.C. § 1, and the New Jersey Antitrust Act, N.J.S.A. 56:9-3. Plaintiff claims
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`that Zillow illegally contracts with certain real estate brokers to alter the location of those brokers’
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`property listings’ estimated prices, called “Zestimates,” on Zillow’s webpages while not offering
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`this option to other brokers, agents, and property owners, such as Plaintiff. Currently pending
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`before the Court is Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint
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`(“SAC”). D.E. 42. The Court reviewed all submissions1 and considered this motion without oral
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`argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the
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`following reasons, Defendants’ motion to dismiss is granted.
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`1 Defendants’ brief in support of their motion to dismiss will be referred to as “Br.,” D.E. 42;
`Plaintiff’s opposition to this motion will be referred to as “Opp.,” D.E. 49; and Defendants’ reply
`to this opposition will be referred to as “Reply,” D.E. 50.
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`I.
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`BACKGROUND2
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`The Court included comprehensive factual backgrounds in its February 28, 2019 and
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`March 3, 2020 Opinions, D.E. 20 (“MTD Op.”), D.E. 33 (“2d MTD Op.”), which are incorporated
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`by reference here. Plaintiff EJ MGT is a New Jersey limited liability company that owns 142
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`Hoover Drive in Cresskill, New Jersey (the “Property”). SAC ¶ 23. Zillow is a market leader in
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`online real estate information. Id. ¶¶ 1, 48. Zillow manages websites that serve as the central
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`database for all real estate listings (including those that are not for sale) in the United States.
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`Id. ¶¶ 48-54. The “Zillow Website” is Zillow’s “flagship offering and the market leader in the
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`online-real-estate-database” industry. Id. ¶ 48.
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`For all listed properties, Zillow includes a “Zestimate,” which is Zillow’s own estimate of
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`the current market value of a home based on an algorithm that considers property facts (such as
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`location, lot size, square footage, number of bedrooms/bathrooms), tax assessments, prior
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`transactions (historical sales prices of the particular property and recent sales of comparable
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`neighboring properties), and user data. Id. ¶ 56. “According to Zillow, the Zestimate home
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`valuation is Zillow’s estimated market value of the property.” Id. ¶ 57. Zillow represents that the
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`Zestimate is the “starting point” for determining a home’s value. Id. ¶ 58.
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`In January 2017, Plaintiff listed the Property for sale. Id. ¶ 151. Keller Williams served
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`as the broker and listing agent, and Zillow displayed the Property on its website. Id. ¶ 152.
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`Plaintiff alleges that “[t]hroughout January of 2017 and up to the filing of the original Complaint
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`2 The facts are derived from Plaintiff’s Second Amended Complaint. D.E. 40 (“SAC”). When
`reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint.
`Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
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`2
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`in this matter, the Zestimate for [the Property] . . . was well below the appraised3 value of” the
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`Property. Id. ¶ 154. Plaintiff further claims that “[t]wo potential buyers have explained4 . . . that
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`they viewed 142 Hoover Drive in 2017 and were confronted with the prominent Zestimate at this
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`same time . . . and were turned off from considering a potential purchase of the property.” Id. ¶
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`155. Plaintiff claims that the Zestimate for the Property “began to fluctuate shortly after the
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`original complaint was filed.” Id. ¶ 161. Plaintiff further contends that after Plaintiff filed its
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`original Complaint on January 15, 2018, Zillow altered the placement of the Property’s Zestimate
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`such that the Zestimate no longer “appear[ed] at the top of the property page” under the listing
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`price; instead, a link with “View Zestimate” appeared (presumably providing the Zestimate if the
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`link was selected). Id. ¶ 159. Plaintiff has been unable to sell the Property in the 36 months that
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`it has been listed on the market. Id. ¶ 166.5
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`Plaintiff contacted Zillow to remove the Property’s Zestimate from directly underneath the
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`Property’s listing price, but Zillow refused. Id. ¶ 75. A Zillow representative explained that “this
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`feature is only available on our premiere agent program for real estate agents” and forwarded
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`Plaintiff information on that program. Id. The Zillow representative later clarified that “Zillow
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`3 As the Court noted in its prior Opinion, Plaintiff only refers to the “appraised value” in a
`conclusory manner. 2d MTD Op. at 10 n. 6. Plaintiff does the same in the SAC.
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` 4
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` The SAC does not indicate when the two potential buyers conveyed the information to Plaintiff
`or how it was conveyed to Plaintiff. The SAC also fails to indicate whether the two potential
`buyers ultimately purchased a comparable property in the area, much less whether they bought a
`property that was listed by one of the Co-conspirator Brokers.
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` 5
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` Given that Plaintiff’s theory of the case is that they were harmed by the prominent location of
`the Zestimate next to the Property’s asking price, Plaintiff inexplicably fails to allege how this
`seemingly critical change – to the link with View Zestimate – caused them to be unable to sell the
`Property over such a long period, that is, from January 2018 to the present. Plaintiff also fails to
`explain how its antitrust allegations are not limited to January 2017 (when Plaintiff first put the
`Property on the market) to January 2018 (when the View Zestimate link began).
`3
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`has various partnerships with Agents, Brokerages, and Vendors that may display a listing page
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`differently than others.” Id. Plaintiff alleges that even premier agents cannot gain this preferential
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`treatment unless they are affiliated with brokers who have contracted (referred to in the SAC as
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`“Zestimate Agreements”) with Zillow to move the Zestimate on the Zillow Website (referred to in
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`the SAC as “Zestimate Suppression”). Id. ¶ 79.
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`Plaintiff alleges “[o]n information and belief” that “Zillow offers Zestimate Suppression to
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`only one brokerage firm within a geographic market.” Id. ¶ 116. The Property, according to
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`Plaintiff, is located in the “Triboro Market,” which Plaintiff defines as the “high-end Cresskill-
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`Alpine-Demarest Triboro market[.]” Id. ¶ 9. In the Triboro Market, “Realogy is the sole brokerage
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`firm to which Zillow offers Zestimate Suppression.” Id. ¶ 118. Plaintiff further alleges that
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`“[t]here is either an express or de facto agreement between Zillow and Realogy that Realogy would
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`be the only firm to have availability to Zestimate Suppression during the course of the agreement.”
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`Id. ¶ 119. Plaintiff asserts that those brokers, agents, and individual homeowners who are not
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`associated with the “Co-Conspirator Brokers” “are left no choice but to have Zestimates appear
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`prominently”6 on their properties’ Zillow pages, putting them at a distinct competitive
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`disadvantage and harming overall competition in the local and national real estate markets. Id. ¶¶
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`16, 93.
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`Plaintiff claims that Zillow participated in an anticompetitive conspiracy by contracting
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`with certain brokers – “Co-Conspirator Brokers” – regarding the display of the Zestimate on
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`Zillow’s website for properties listed through the Co-Conspirator Brokers. Id. ¶ 84. Specifically,
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`6 This allegation as to the prominence of the Zestimate is written in the present tense. However,
`as noted, Plaintiff also claims that after it filed its initial Complaint, Zillow altered the placement
`of the Property’s Zestimate such that the Zestimate no longer “appear[ed] at the top of the property
`page” under the listing price; instead, a link with “View Zestimate” appeared. Id. ¶ 159. The SAC
`does not clarify this apparent discrepancy.
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`4
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`Plaintiff alleges that Zillow entered into the Zestimate Agreements which allowed the Co-
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`Conspirator Brokers to use Zestimate Suppression to relocate their properties’ Zestimates so that
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`they did not appear directly under their properties’ listing prices. Id. ¶¶ 3, 4.7 Zillow, however,
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`does not completely remove the Zestimate for any listing. Id. ¶ 74. Even when it removes the
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`Zestimate from under the listing price, Zillow still makes the Zestimate available under “Zestimate
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`details” on the property’s Zillow page. Id. However, without Zestimate Suppression, “when a
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`user lands on the subpage of a property that is listed for sale . . . both the sale price and the
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`Zestimate are immediately visible and prominently displayed, side by side.” Id. ¶ 4.8 Plaintiff
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`contends this is a competitive disadvantage and alleges that “a visitor spends, on average, 15.84
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`seconds viewing a given property’s subpage” and that “on information and belief” that time “is
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`spent looking at photographs of a given home as opposed to scrolling through written information
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`in search of the Zestimate.” Id. ¶ 5.
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`Plaintiff surmises that the Zestimate Suppression achieved through the Zestimate
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`Agreements anticompetitively tilts “the playing field in favor of the “Co-Conspirator Brokers.”
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`Id. ¶ 113. Plaintiff further claims that the “[s]elective concealment” of the Zestimate “disrupts the
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`proper functioning of a competitive marketplace.” Id. ¶ 137. Plaintiff alleges that Zestimate
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`Suppression “has permitted the Co-Conspirator Brokers to insulate themselves from competition”
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`leaving the Co-Conspirator Brokers “otherwise free from . . . concerns that other brokers and
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`7 As discussed in note 6, the SAC fails to indicate how this alleged competitive advantage was
`impacted when Zillow switched to the “View Zestimate” link.
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` 8
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` Again, Plaintiff also alleges Zillow has altered the placement of the Property’s “and others’”
`Zestimates such that the Zestimate no longer “appear[ed] at the top of the property page” under
`the listing price; instead, a link with “View Zestimate” appeared (presumably providing the
`Zestimate if the link was selected). Id. ¶ 159. It is therefore unclear to the Court, based on
`Plaintiff’s allegations, what an internet user actually sees when viewing the Property.
`5
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`individual home sellers address when faced with a prominently displayed Zestimate.” Id. ¶ 141.
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`Plaintiff also alleges that the Zestimate Suppression suppresses “critical price information”
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`(apparently the Zestimates) on the Co-Conspirator Brokers’ listings. Id. ¶ 91. See also id. at 7
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`(“The Zestimate Agreements are agreements to suppress pricing information[.]”); ¶ 8 (“The Zillow
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`Agreements unreasonably restrain open price competition by suppression and reducing the output
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`of pricing information.”). In this regard, the SAC is seemingly contradictory in that it alleges that
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`the Zestimates are “critical price information” but also that the Zestimate as to the Property is
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`apparently inaccurate.
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`Plaintiff claims that since 2017, “Co-Conspirator Brokers that have had the benefit of
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`Zestimate Suppression . . . have sold at least eight high-end homes in the town of Cresskill” as
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`compared to two sales by brokers operating without the benefit of Zestimate suppression. Id. ¶
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`164. As a result, Plaintiff asserts that, as a consumer of services from non-Co-Conspirator Brokers,
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`it “has paid supracompetitive quality adjusted prices and, in turn, received a reduced quality of
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`service.” Id. Plaintiff further alleges it was injured by “the lost opportunity to sell 142 Hoover,
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`lost profits and continuing carrying costs such as property taxes, insurance, landscaping, utilities
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`and other expenses related to owning an investment property.” Id. ¶ 35.
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`II.
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`PROCEDURAL HISTORY
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`Plaintiff filed its original Complaint on January 1, 2018 alleging five causes of action: (1)
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`conspiracy to restrain trade under Section 1 of the Sherman Act, 15 U.S.C. § 1; (2) conspiracy to
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`restrain trade under the New Jersey Antitrust Act, N.J.S.A. 56:9-3; (3) fraud under the New Jersey
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`Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8-1 et seq.; (4) slander of title/product
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`disparagement under New Jersey common law; and (5) interference with prospective economic
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`6
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`advantage under New Jersey common law. D.E. 1 ¶¶ 97-127. Zillow filed a motion to dismiss
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`Plaintiff’s Complaint, D.E. 11, which the Court granted, MTD Op.
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`The Court provided Plaintiff an opportunity to file an amended complaint, which Plaintiff
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`filed on March 29, 2019, alleging only two of its previous five counts: (1) conspiracy to restrain
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`trade under Section 1 of the Sherman Act, and (2) conspiracy to restrain trade under the New Jersey
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`Antitrust Act. D.E. 22 (“FAC”). Zillow again moved to dismiss Plaintiff’s FAC, D.E. 24, which
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`the Court granted, 2d MTD Op.
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`The Court provided Plaintiff an opportunity to file a second amended complaint, which
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`Plaintiff filed on June 1, 2020, again alleging two counts: (1) conspiracy to restrain trade under
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`Section 1 of the Sherman Act, and (2) conspiracy to restrain trade under the New Jersey Antitrust
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`Act. D.E. 40. The current motion followed. Zillow moved to dismiss the SAC, D.E. 42, which
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`Plaintiff opposed, D.E. 49. Defendants filed a reply. D.E. 50.
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`On February 25, 2021, Plaintiff filed a letter as to Zillow’s motion to dismiss. See D.E.
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`51. Plaintiff requested that “the motion record be supplemented” with the “Majority Staff Report
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`and Recommendations of the Investigation of Competition in Digital Markets” (the “Report”)
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`authored by the United States House of Representatives’ Subcommittee on Antitrust, Commercial
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`and Administrative Law (the “Subcommittee”) of the Committee on the Judiciary. Id. at 1.
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`Plaintiff represents that the Subcommittee issued the Report after the briefing on the motion to
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`dismiss concluded. Id. However, Plaintiff admits the Report was issued on October 6, 2020, so it
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`appears Plaintiff waited several months to bring the report to the Court’s attention. Plaintiff also
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`ignores that, in deciding a motion to dismiss, a district court may only consider “exhibits attached
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`to the complaint and matters of public record” as well as “an undisputedly authentic document that
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`a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the
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`7
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`document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
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`1993). Plaintiff’s letter fails to indicate under which exception the Report falls. Accordingly, the
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`Court did not consider the Report in resolving Zillow’s motion to dismiss.
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` Even if the Court considered the Report, Plaintiff’s letter does not point to any specific
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`findings that would be relevant to the issues presented in the current motion. Plaintiff represents
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`that the Subcommittee made a general finding that “dominant platforms in the digital economy
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`‘exploit gatekeeper power to dictate terms and extract concession that no one would reasonably
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`consent to in a competitive market.” Id. Plaintiff further represents that the Subcommittee
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`characterized “the antitrust injury/antitrust standing doctrines as well as the heightened pleadings
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`standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) as ‘significant obstacles’ erected
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`by courts that ‘hamper[] private antitrust plaintiffs.’” D.E. 51 at 2. To the extent Plaintiff is asking
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`the Court to disregard binding precedent, the Court is without authority to do so.
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`III.
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`STANDARD OF REVIEW
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`A. Rule 12(b)(1)
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`In deciding a Rule 12(b)(1) motion for lack of subject-matter jurisdiction, a court must first
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`determine whether the party presents a facial or factual attack because the distinction determines
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`how the pleading is reviewed. A facial attack “contests the sufficiency of the complaint because
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`of a defect on its face,” whereas a factual attack “asserts that the factual underpinnings of the basis
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`for jurisdiction fails to comport with the jurisdictional prerequisites.” Elbeco Inc. v. Nat’l Ret.
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`Fund, 128 F. Supp. 3d 849, 854 (E.D. Pa. 2015) (quoting Moore v. Angie’s List, Inc., 118 F. Supp.
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`3d 802, 806 (E.D. Pa. 2015)).
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`For a facial attack, “the Court must consider the allegations of the complaint as true,” much
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`like a Rule 12(b)(6) motion to dismiss. Bd. of Trs. of Trucking Emps of N. Jersey Welfare Fund,
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`8
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`Inc. v. Caliber Auto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June 11, 2010)
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`(quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). However, for a factual
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`attack, “the court may consider and weigh evidence outside the pleadings to determine if it has
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`jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding
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`modified by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). The burden is on the plaintiff to
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`prove that the Court has jurisdiction. Id.
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`As for a district court’s power to hear the case, “Article III of the Constitution limits the
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`jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v. Coffman, 549 U.S. 437,
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`439 (2007). One key aspect of this case-or-controversy requirement is standing. See id. “The
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`standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in the
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`outcome when the suit was filed.” Constitution Party of Pa., 757 F.3d at 360. To establish
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`standing, a plaintiff must satisfy a three-part test, showing: “(1) an ‘injury in fact,’ i.e., an actual
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`or imminently threatened injury that is ‘concrete and particularized’ to the plaintiff; (2) causation,
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`i.e., traceability of the injury to the actions of the defendant; and (3) redressability of the injury by
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`a favorable decision by the Court.” Nat’l Collegiate Athletic Ass’n v. Gov. of N.J., 730 F.3d 208,
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`218 (3d. Cir. 2013).
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`B. Rule 12(b)(6)
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`Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to
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`dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
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`motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to
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`relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
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`complaint is plausible on its face when there is enough factual content “that allows the court to
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`draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
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`9
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`Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose a probability
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`requirement, it does require a pleading to show more than a sheer possibility that a defendant has
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`acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
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`quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
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`a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
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`In evaluating the sufficiency of a complaint, a district court must accept all factual
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`allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
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`Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not
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`compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
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`disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,
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`after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
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`relief could be granted under any set of facts consistent with the allegations, a court may dismiss
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`the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., 2010 WL
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`5146765, at *1 (D.N.J. Dec. 13, 2010).
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`IV. ANALYSIS
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`A. Article III Standing
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`The Court previously found that Plaintiff’s FAC failed to adequately establish Article III
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`standing. 2d MTD Op. at 10-11. Defendants argue that the same infirmity plagues the SAC. Br.
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`at 8-11. A plaintiff seeking to establish Article III standing “must demonstrate ‘(1) an injury-in-
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`fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3)
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`a likelihood that the injury will be redressed by a favorable decision.”’ Finkelman v. Nat’l Football
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`League, 810 F.3d 187, 193 (3d Cir. 2016) (emphasis added) (quoting Neale v. Volvo Cars of N.
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`Am., LLC, 794 F.3d 353, 358-59 (3d Cir. 2015) (internal quotations omitted and punctuation
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`10
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`modified)). The first element, an injury-in-fact, requires Plaintiff to show “‘the invasion of a
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`concrete and particularized legally protected interest’ resulting in harm ‘that is actual or imminent,
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`not conjectural or hypothetical.”’ Finkelman, 810 F.3d at 193 (quoting Blunt v. Lower Merion
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`Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)). The second element, causation, “requires the alleged
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`injury to be ‘fairly traceable to the challenged action of the defendant, and not the result of the
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`independent action of some third party not before the court.’” Finkelman, 810 F.3d at 193 (quoting
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`Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir. 2009)). The Third Circuit
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`has explained that Article III’s causation requirement is “akin to ‘but for’ causation in tort and may
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`be satisfied ‘even where the conduct in question might not have a proximate cause of the harm.’”
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`Finkelman, 810 F.3d at 193 (quoting Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 418
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`(3d Cir. 2013)). The third element, redressability, requires a plaintiff “to show that it is ‘likely, as
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`opposed to merely speculative,’ that the alleged injury will be redressed by a favorable decision.”
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`Finkelman, 810 F.3d at 194 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
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`“When assessing standing on the basis of the facts alleged in a complaint,” courts “apply
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`the same standard of review we use when assessing a motion to dismiss for failure to state a claim.”
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`Id. (citing In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F. 3d 235,
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`243 (3d Cir. 2012)). The Third Circuit has described this process as a three-step inquiry:
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`First, we “tak[e] note of the elements a plaintiff must plead to state
`a claim” – here, the three elements of Article III standing. Second,
`we eliminate from consideration any allegations that, “because they
`are no more than conclusions, are not entitled to the assumption of
`truth.” Third, “where there are well-pleaded factual allegations,
`[we] assume their veracity and then determine whether they
`plausibly” establish the prerequisites of standing. In conducting this
`analysis, we are mindful of the Supreme Court’s teaching that all
`aspects of a complaint must rest on “well-pleaded factual
`allegations” and not “mere conclusory statements.” Thus, to survive
`a motion to dismiss for lack of standing, a plaintiff “must allege facts
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`11
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`that affirmatively and plausibly suggest that it has standing to sue.”
`Speculative or conjectural assertions are not sufficient.
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`Id. (internal citations omitted).9 With respect to causation, the Third Circuit has explained that
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`[t]he causation element of standing requires a plaintiff to allege facts
`sufficient to show that his or her injury is “fairly traceable” to the
`alleged wrongdoing of the defendant. We have explained that
`traceability requires, at a minimum, that the defendant’s purported
`misconduct was a “but for” cause of the plaintiff’s injury.
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`Id.
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`Here, Plaintiff’s injury-in-fact is alleged as follows:
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`Plaintiff, which is in the business of buying, renovating, and selling
`homes, has suffered the following business injuries: the lost
`opportunity to sell 142 Hoover, lost profits and continuing carrying
`costs such as property taxes, insurance, landscaping, utilities, and
`other expenses related to owning an investment property.
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`Plaintiff has also suffered injuries in fact through its having paid
`supracompetitive quality-adjusted prices for brokerage services and
`having received a lower quality of services.
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`SAC ¶¶ 35-36; see also Opp. at 6.
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`Defendants argue Plaintiff fails to plead Article III standing because the Court previously
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`found that the first injury could not provide Article III standing for lack of causation and that the
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`second, newly alleged injury, is not sufficiently pled. Br. at 8-11. Plaintiff responds that the
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`allegations in the SAC satisfy the “but for” requirement for pleading causation under the Article
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`9 In this context, the Third Circuit has acknowledged that “[s]ome of our sister circuits have
`questioned how well the ‘plausibility’ standard of Iqbal and Twombly maps onto standing
`doctrine.” Finkelman, 810 F.3d at 194 n.55 (citing Maya v. Centex Corp., 658 F.3d 1060, 1068
`(9th Cir. 2011), and Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 225 (2d Cir. 2008)). The
`Circuit continued, “[w]ithout wading too deeply into this particular thicket, we are content to say
`that, even when reviewing only the bare allegations of a complaint, Iqbal and Twombly teach that
`standing cannot rest on mere ‘legal conclusions’ or ‘naked assertions.’” Id.
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`III standing analysis. Opp. at 7-11. Plaintiff specifically argues that the “price anchoring effects”
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`of the location of the Zestimate are the cause of its harm – not the Zestimate itself. Id. at 11.
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`As to the newly alleged injury – Plaintiff’s payment of “supracompetitive” prices – the
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`Court finds that Plaintiff has failed to plausibly allege an injury-in-fact. Plaintiff now claims that
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`it was injured “through its having paid supracompetitive quality-adjusted prices for brokerage
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`services and having received a lower quality of services.” SAC ¶ 36. This conclusory allegation
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`is repeated throughout the SAC, id. ¶¶ 19, 20, 36, 37, 124, 146, and is not entitled to the
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`presumption of veracity. Finkelman, 810 F.3d at 194. Plaintiff provides no other factual details
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`concerning this injury. For example, Plaintiff does not allege the amount it paid for services or
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`facts from which the Court can infer that the price Plaintiff paid was “supracompetitive.”
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`Accordingly, the Court finds that this allegation is insufficient to establish Article III standing.10
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`The other alleged injury – the costs associated with Plaintiff’s inability to sell the Property,
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`SAC ¶ 35 – is the same as alleged in the FAC. See FAC ¶ 126. The Court previously found that,
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`assuming the lost profits constituted an injury-in-fact, Plaintiff failed to adequately plead causation
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`for that injury. 2d MTD Op. at 7-11. “The causation element of standing requires a plaintiff to
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`allege facts sufficient to show that his or her injury is ‘fairly traceable’ to the alleged wrongdoing
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`of the defendant.” Finkelman, 810 F.3d at 198. Such “traceability requires, at a minimum, that
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`the defendant’s purported misconduct was a ‘but for’ cause of the plaintiff’s injury.” Id. (emphasis
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`10 Plaintiff also alleges that as a result of Zillow’s action, Plaintiff faces “decreased quality of
`brokerage services.” See, e.g., SAC ¶ 123. This conclusory allegation is only vaguely explained
`as meaning that Plaintiff “has received a lower quality of broker service, which is evidenced by
`the inability to sell its property when compared against similarly priced properties within the
`Triboro Market during the relevant time period, which have been more likely to sell.” Id. ¶ 124.
`Besides the circular reasoning employed (Plaintiff’s brokers are of lower quality because they
`cannot sell the Property), Plaintiff fails to allege any facts demonstrating what it means by
`“similarly priced,” “the relevant time period,” or “more likely to sell.”
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`added). Plaintiff must establish that “but for” Defendants’ Zestimate Agreements with other
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`brokers, Plaintiff would not have suffered lost profits from its inability to sell the Property.
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`This Court previously found that “Plaintiff’s alleged causal connection between its injury
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`and Defendants’ conduct appears to concern the value of the Property’s Zestimate rather than the
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`location of the Property’s Zestimate, and certainly does not appear to concern the location of
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`Zestimates on the co-conspirators’ property listings.” 2d MTD Op. at 10 (emphasis in original).
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`The SAC contains the same allegations concerning the prominence of pricing information as in
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`the FAC which this Court previously found insufficient. Compare SAC ¶ 78 with FAC ¶ 81. And
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`as in the FAC, here Plaintiff complains that the negative pricing information on its page dissuades
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`customers from purchasing the Property. Compare SAC ¶ 155 with FAC ¶ 112; see also SAC ¶ 6
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`(alleging “[d]iscrepancies between a property’s Zestimate . . . substantially impacts the attituded
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`and behavior of buyers in the luxury market.”).
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`More importantly, Plaintiff does not allege that it lost any potential buyers to a comparable
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`property sold by one of the Co-Conspirator Brokers in which the Zestimates were in a less
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`prominent position. Plaintiff only indicates that two potential buyers informed Plaintiff that when
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`they viewed the Property in 2017, they “were turned off from considering a potential purchase of
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`the property based on the discrepancy between the listing price and the Zestimate.” Id. ¶ 155.
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`Putting aside the vagaries of this allegation, the SAC does not indicate that the buyers bought a
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`comparable property at a comparable price from a Co-Conspirator Broker. Moreover, Plaintiff
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`has characterized the Zestimate Agreements as, among other things, “depriving consumers access
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`to price information as displayed in the Zestimate.” SAC ¶ 139(d) (emphasis added). As pled,
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`this alleged injury impacts consumers, not sellers like Plaintiffs. Accordingly, the SAC adds no
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`allegations to alter the Court’s previous finding that Plaintiff failed to adequately plead causation
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`as to its lost profit injury. MTD Op. at 7-11.
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`Plaintiff also added a new allegation that “[o]n information and belief, Zillow offers
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`Zestimate Suppression to only one brokerage firm within a given geographic market.” Id. ¶ 116.
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`However, this statement is conclusory as Plaintiff fails to set forth the facts that give rise to
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`Plaintiff’s “belief” that such an agreement exists. A plaintiff may plead facts upon information
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`and belief “where it can be shown that the requisite factual information is peculiarly within the
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`defendant’s knowledge or control – so long as there are no boilerplate and conclusory allegations
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`and plaintiffs accompany their legal theory with factual allegations that make their theoretically
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