Respondents Brief — CoStar Group, Inc., et al., Petitioners v. Commercial Real Estate Exchange, Inc.

Supreme Court briefFeb 13, 2026

Ask Donna

What actually matters in this document.

Text

No. 25-667

IN THE

Supreme Court of the United States

COSTAR GROUP, INC.;

COSTAR REALTY INFORMATION, INC.,

Petitioners,

COMMERCIAL REAL ESTATE EXCHANGE, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

ALEX SPIRO

ELLYDE R. THOMPSON

Counsel of Record

GRACE SULLIVAN

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

295 5th Avenue, 9th Floor

New York, NY 10016

(212) 849-7000

ellydethompson@

quinnemanuel.com

Counsel for Respondent

February 13, 2026

QUESTION PRESENTED

Whether the court of appeals correctly reinstated

counterclaims asserting violations of the Sherman Act

based on allegations accepted as true at the pleading

stage that an undisputed monopolist (a) imposes

contract terms that in practice have the effect of

preventing customers from using a competitor’s

services and (b) surreptitiously prevents its customers

from sharing their publicly available information with

competitors.

RULE 29.6 STATEMENT

Commercial Real Estate Exchange, Inc. has no

parent company and no publicly held company owns

10% or more of Commercial Real Estate Exchange,

Inc.’s outstanding common stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED

RULE 29.6 STATEMENT

TABLE OF AUTHORITIES

INTRODUCTION

COUNTERSTATEMENT

REASONS FOR DENYING THE WRIT

THE DECISION BELOW CORRECTLY

APPLIES THIS COURT’S

ESTABLISHED FRAMEWORK FOR DE

FACTO EXCLUSIVE DEALING

CLAIMS

No Circuit Split Or Confusion

Exists Regarding De Facto

Exclusive Dealing Claims

The Decision Below Is Correct

THE DECISION BELOW CORRECTLY

REJECTS THE APPLICATION OF THE

REFUSAL-TO-DEAL FRAMEWORK TO

THE ALLEGED COUNTERCLAIMS

II.

There Is No Circuit Confusion

About Trinko And Refusal-ToDeal Claims

The Decision Below Correctly

Characterized The Counterclaims

As Exclusive Dealing Claims

III. THIS CASE PRESENTS A POOR

VEHICLE FOR REVIEW

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

Abbott v. Veasey,

137 S. Ct. 612 (2017)

Atlantic Richfield Co. v. USA Petroleum

Co.,

495 U.S. 328 (1990)

Bathke v. Casey’s Gen. Stores, Inc.,

64 F.3d 340 (8th Cir. 1995)

Chase Mfg. Inc. v. Johns Manville Corp.,

84 F.4th 1157 (10th Cir. 2023)

17, 23

Concord Boat Corp. v. Brunswick Corp.,

207 F.3d 1039 (8th Cir. 2000)

14, 15

Duke Energy Carolinas, LLC v. NTE

Carolinas II, LLC,

111 F.4th 337 (4th Cir. 2024)

Eastman Kodak Co. v. Image Tech.

Servs., Inc.,

504 U.S. 451 (1992)

3, 10, 20, 25

Kyles v. Whitley,

514 U.S. 419 (1995)

LePage’s Inc. v. 3M,

324 F.3d 141 (3d Cir. 2003)

Maple Flooring Mfgs. Assn. v. United

States,

289 U.S. 563 (1925)

McWane, Inc. v. F.T.C.,

783 F.3d 814 (11th Cir. 2015)

16, 17

New York v. Meta Platforms, Inc.,

66 F.4th 288 (D.C. Cir. 2023)

Novell, Inc. v. Microsoft Corp.,

731 F.3d 1064 (10th Cir. 2013)

11, 22, 23, 26

Office of Senator Mark Dayton v.

Hanson,

550 U.S. 511 (2007)

Pac. Bell Tel. Co. v. Linkline Commc’ns,

555 U.S. 438 (2009)

Se. Mo. Hosp. v. C.R. Bard, Inc.,

642 F.3d 608 (8th Cir. 2011)

Tacon v. Arizona,

410 U.S. 351 (1973)

Tampa Elec. Co. v. Nashville Coal Co.,

365 U.S. 320 (1961)

14, 15

2, 12, 17

Taylor v. Riojas,

592 U.S. 7 (2020)

28, 29

United Air Lines, Inc. v. Austin Travel

Corp.,

867 F.2d 737 (2d Cir. 1989)

13, 14

vii

United Shoe Mach. Corp. v. United

States,

258 U.S. 451 (1922)

2, 12, 13

United States v. Columbia Steel Co.,

334 U.S. 495 (1948)

United States v. Dentsply International,

Inc.,

399 F.3d 181 (3d Cir. 2005)

Va. Military Inst. v. United States,

508 U.S. 946 (1993)

Verizon Communications Inc. v. Law

Offices of Curtis V. Trinko, LLP,

540 U.S. 398 (2004)

3, 21, 26, 27

Viamedia, Inc. v. Comcast Corp.,

951 F.3d 429 (7th Cir. 2020)

24, 25

ZF Meritor, LLC v. Eaton Corp.,

696 F.3d 254 (3d Cir. 2012)

15, 16

Other Authorities

Fed. R. Civ. P. 54(b)

Sup. Ct. R. 10

1, 4, 5, 9, 28

INTRODUCTION

Respondent Commercial Real Estate Exchange,

Inc. (“CREXi”) respectfully submits this brief in

opposition to the petition for a writ of certiorari filed

by CoStar Group, Inc. and CoStar Realty Information,

Inc. (together, “CoStar”). The unanimous decision

below allowing CREXi’s antitrust counterclaims to

proceed past the pleading stage reflects a careful

application of settled law to the allegations at issue.

Petitioners identify no unsettled legal question or

circuit split warranting this Court’s review.

This case concerns a dispute between competitor

online commercial real estate platforms. CoStar, who

has undisputed monopoly power and a history of

utilizing aggressive litigation strategies to drive

competitors out of the market, sued CREXi for

counterclaims based on CoStar’s improper and illegal

anticompetitive practices. At issue here are CREXi’s

claims under §§ 1 and 2 of the Sherman Act for

unlawful monopolization and attempted monopolization and for exclusive dealing. Specifically, CREXi

alleges that CoStar intentionally weaponizes a

combination of contract provisions and technological

barriers to prevent commercial real estate brokers

who utilize CoStar’s services from also using the

services of competitors like CREXi.

After the district court dismissed CREXi’s antitrust

counterclaims, it granted CREXi’s motion for partial

final judgment on those claims under Federal Rule of

Civil Procedure 54(b) while the parties continued to

litigate the remaining claims in the district court. The

court of appeals unanimously reversed, holding that

“CREXi has plausibly alleged that CoStar engaged in

anticompetitive conduct to protect its monopoly

power, and that the conduct is an unreasonable

restraint of trade.” Pet. App. 28a.1

The decision below raises no legal issue warranting

this Court’s review. Instead, petitioners seek to

manufacture legal questions out of their

disagreements with the court of appeals’ view of

CREXi’s factual allegations at the motion to dismiss

stage.

There is no better proof of that than petitioners’

own formulation of the questions presented.

Petitioners first ask this Court to intervene to answer

the question whether “a ‘de facto’ exclusive dealing

claim is cognizable under the Sherman Act in the

absence of exclusive contractual terms, programs, or

policies.” Pet. i. To begin, there is no dispute among

the courts of appeals about whether de facto exclusive

dealing claims are cognizable under the Sherman Act.

Every circuit to consider the question—including

every circuit that petitioners identify—recognizes

that such claims are cognizable under the Sherman

Act. This universal recognition stems directly from

this Court’s century-old guidance in United Shoe

Mach. Corp. v. United States, 258 U.S. 451 (1922),

reiterated in Tampa Elec. Co. v. Nashville Coal Co.,

365 U.S. 320 (1961), that the exclusivity inquiry turns

not on a nearsighted interpretation of contract

language but rather on practical effect and market

realities. That approach is also in line with this

Court’s instruction that “[l]egal presumptions that

rest on formalistic distinctions rather than actual

market realities are generally disfavored in antitrust

This brief cites to the amended opinion of the court of

appeals.

law.” Eastman Kodak Co. v. Image Tech. Servs., Inc.,

504 U.S. 451, 466–67 (1992). In addition, and

underscoring the impropriety of review at this stage,

CREXi did allege that CoStar’s contractual provisions

are, in practice, exclusive. And the court of appeals

first and foremost relied on CoStar’s contractual

arrangements in reinstating CREXi’s counterclaims—an analysis that petitioners never address in

their petition, much less call into question. The cases

to which petitioners cite in asserting that “confusion”

exists among courts of appeals show nothing more

than different courts reaching different conclusions

based on the specific facts in each case, just as one

would expect given the fact-dependent nature of the

inquiry. Petitioners’ challenges to the sufficiency of

the complaint are nothing more than factual disputes

better left for the district court—where the parties are

still litigating CoStar’s copyright claim and other

counterclaims—to address in the first instance on a

full factual record.

Petitioners likewise mischaracterize the allegations

supporting CREXi’s counterclaims—and the court of

appeals’ analysis—in asking this Court to address

whether “a refusal-to-deal claim prohibited by Verizon

Communications Inc. v. Law Offices of Curtis V.

Trinko, LLP, 540 U.S. 398 (2004), is cognizable if the

plaintiff calls it something else.” Pet. i. That is not an

open legal question; the answer is plainly no, and no

court of appeals—certainly not the court of appeals in

this case—has ever suggested otherwise.

But

CREXi’s claims are simply not refusal-to-deal claims.

CREXi alleges that CoStar utilizes technological

barriers on brokers’ own websites to prevent brokers

from sharing the brokers’ own information with

CoStar’s competitors. That is an exclusive dealing

claim, not a refusal-to-deal claim, and the court of

appeals correctly analyzed CREXi’s counterclaims

under that framework.

Finally, even if the Court were inclined to conclude

that confusion exists among the courts of appeals that

warrants this Court’s consideration of the questions

presented, this case is a poor vehicle for doing so. The

interlocutory posture of this case, which arrives at

this Court following certification under Rule 54(b),

weighs against certiorari. Petitioners will have ample

opportunity to litigate whether CREXi’s counterclaims can succeed on the specific facts of this case,

and the courts below will have the opportunity to

address that question with the benefit of a full factual

record. Indeed, review at this stage is particularly

inappropriate given that petitioners’ arguments

disregard the facts alleged in the complaint, on which

the court of appeals relied, and that this Court must

accept as true.

For all these reasons, the Court should deny the

petition.

COUNTERSTATEMENT

1. CoStar, founded in 1987, has established itself

as the behemoth of the commercial real estate

technology and data market. 4-ER-566, ¶ 21.

According to CoStar itself, “nearly 90% of all

[commercial real estate] activity occurs on a CoStar

Network.” 4-ER-621, ¶ 210. CoStar has obtained this

dominance in large part by either acquiring or suing

its competition—and in some cases, both. For

example, CoStar acquired its former competitor

LoopNet after pushing LoopNet to the brink of

bankruptcy through litigation. 4-ER-615, ¶ 184.

CoStar also sought to acquire its competitor Xceligent,

then owned by LoopNet. 4-ER-615, ¶ 185. The FTC

intervened, concluding that the merger would

“increas[e] the likelihood that CoStar w[ould] exercise

market power unilaterally.” 4-ER-615–16, ¶ 185. To

resolve the FTC action, CoStar agreed to a consent

order requiring CoStar to divest LoopNet’s interest in

Xceligent. 4-ER-617, ¶ 190. Nevertheless, CoStar

sued Xceligent and forced it into bankruptcy and out

of the commercial real estate technology and data

market. 4-ER-618, ¶¶ 192–195. Just seven months

after Xceligent filed for bankruptcy, CoStar raised its

average monthly price for new customers by 80

percent. 4-ER-619, ¶ 197. CoStar subsequently

acquired an auction platform called Ten-X and its

subsidiaries by merger. 4-ER-566, 4-ER-614, ¶¶ 23,

180.

Compounding CoStar’s anticompetitive tactics,

significant barriers to entry exist in the commercial

real estate technology and data market. 4-ER-609,

¶ 168. In the commercial real estate listing business,

an increase in seller-side brokers who use a particular

service leads to an increase in the value of the service

for buyer-side brokers, which in turn leads to more

buyer-side brokers using the service, ultimately

increasing the value of the service to seller-side

brokers. 4-ER-609, ¶ 168. These network effects

entrench the industry’s one established player:

CoStar. They also impede new entrants. A new

entrant cannot attract buyer-side brokers to search

property listings unless there are enough seller-side

brokers using the service to list properties. 4-ER-60910, ¶ 169. In the same vein, seller-side brokers do not

want to use the service to list properties unless it is

used by a large number of buyer-side brokers, creating

a “catch-22.” Id.

2. CREXi, founded in 2015, is an innovative new

entrant in this market. 4-ER-565, ¶ 18. When CoStar

set its sights on CREXi, it turned to a familiar

playbook—wielding a copyright infringement lawsuit

as a strategic weapon. D. Ct. Dkt. No. 1; SER-124–34,

¶¶ 308–372. In response, CREXi had no choice but to

seek to put an end to CoStar’s anticompetitive

practices that have prevented prospective customers

from working with CREXi and damaged CREXi’s

relationships with its customers. 4-ER-634, ¶ 259.

Among other claims, CREXi asserted antitrust

counterclaims under §§ 1 and 2 of the Sherman Act for

unlawful monopolization and attempted monopolization and for exclusive dealing. D. Ct. Dkt. No. 71;

3-ER-330–423. Specifically, CREXi alleged that

CoStar has, as CoStar’s own CEO described it, built a

“moat” around its customer base. 4-ER-611, ¶ 172.

CoStar built this “moat” using two strategies that

form the bases of the claims challenged in the petition:

(1) exclusive agreements and (2) technological

barriers that further promote exclusivity.

First, CREXi alleged that, despite illusory

provisions stating that CoStar’s rights to brokers’

data will be nonexclusive, other specific provisions in

CoStar’s contracts with brokers render the

agreements effectively exclusive. 4-ER-562, ¶ 6.

CREXi’s allegations relate to four interrelated

agreements: “the LoopNet and LoopLink terms that

both govern CoStar’s listing service; the CoStar terms

that govern its information service; and the Ten-X

terms that govern its auction service.” Pet. App. 23a.

For example, the LoopNet terms and conditions

posted on the LoopNet website that govern the service

forbid brokers from reproducing content available on

LoopNet “in connection with any other . . . listing

service” and from “integrat[ing] or incorporat[ing] any

portion of the Content into any other database.”

4-ER-576, ¶ 56. The LoopNet terms further require

brokers and other users of LoopNet to “treat all

information obtained from the Service,” including the

broker’s own “listings . . . and any information

otherwise made available,” as “proprietary to

LoopNet.” 4-ER-577, ¶ 61. Brokers must also agree

that it “shall constitute a prima facie breach” of the

LoopNet terms if CoStar determines that “any third

party,” including a competitor, “has access to property

listings” provided by brokers and modified by CoStar.

4-ER-577–78, ¶ 63.

These provisions, CREXi alleges, “impede [brokers]

from exploring competitive options.” 4-ER-575, ¶ 55.

This effect is not accidental. As CREXi alleges,

“[t]hese terms, by design, limit brokers’ ability to use

other listing platforms while they are signed up for

CoStar’s services.” 4-ER-577, ¶ 60. Ultimately,

CREXi alleges, these terms mean that “brokers [who]

signed up for CoStar’s services are foreclosed from

working with a competing company like CREXi.”

4-ER-579, ¶ 69.

CREXi’s concerns about the practical effects of

CoStar’s contractual provisions are not speculative.

Brokers understand these provisions to mean that

they cannot work with CoStar’s competitors. 4-ER578, ¶ 65. For example, as CREXi’s complaint

recounts, on one occasion, CREXi offered to post a

broker’s listings on CREXi’s platform. 4-ER-578,

¶ 66. The broker, however, responded that such an

arrangement would be “problematic in regard to our

contractual relationship with CoStar” and specifically

pointed to LoopNet’s contractual requirements that

the broker “shall not integrate or incorporate any

portion of the [LoopNet listing] Content into any other

database.” Id. The complaint contains two other

accounts of brokers expressing their understanding

that they cannot work with CREXi because doing so

would conflict with their agreements with CoStar.

4-ER-578–79, ¶¶ 66–68.

Second, technological barriers further prevent

brokers from transferring their listings to platforms

other than CoStar. 4-ER-561, ¶ 4. CoStar offers a web

tool called LoopLink that gives brokers the ability to

display their commercial real estate listings,

including property information and brokers’ own

property photos, on brokers’ own publicly available

websites. 4-ER-570, ¶ 39. The brokers’ own websites

often serve as the comprehensive and exclusive

repository of the brokers’ listings. 4-ER-571, ¶ 41.

Accordingly, when brokers who use CoStar wish to

share their listings on CREXi’s platform, they often

ask CREXi to pull the brokers’ own information from

the listings the brokers have created on their own

websites. 4-ER-572–73, ¶¶ 45–47. CREXi found that

to be impossible, however, because, unknown to the

brokers who use LoopLink, CoStar blocks its

competitors from viewing brokers’ LoopLink-enabled

websites. 4-ER-571–72, ¶¶ 42–43. In other words,

CoStar restricts its competitors from accessing

broker-owned websites, even when brokers request

that the competitor visit their sites. Indeed, if a

CREXi employee attempts to visit a brokers’

LoopLink-enabled website, she will be met with an

“Access Denied” screen. 4-ER-572, ¶ 42.

3. The district court erroneously dismissed CREXi’s

counterclaims concerning exclusive agreements and

technological barriers. Pet. App. 39a–81a. The

district court failed to draw all reasonable inferences

in CREXi’s favor in concluding that “the practical

effect” of CoStar’s broker contracts “is that the public

and brokers are free to access listings through

LoopNet, LoopLink, or the brokers’ own websites, but

cannot copy and reuse the modified images,” Pet. App.

46a—a view of the facts divorced from the gravamen

of CREXi’s counterclaim and directly contradicted by

CREXi’s allegation that these provisions have the

practical effect of “chilling . . . brokers’ willingness to

work with competitors,” 4-ER-577, ¶ 60.

In addition to misapplying the standard of review,

the district court misconstrued the nature of CREXi’s

claims. The district court began its analysis of

CREXi’s counterclaims with an irrelevant premise:

“[A] business generally has the right to refuse to deal

with its competitors.” Pet. App. 42a. The district

court concluded that CREXi failed to allege

anticompetitive conduct based on technological

barriers because “CoStar is not obligated to provide

CREXi with access to its websites and database.” Pet.

App. 44a. But CREXi has never alleged that CoStar

refused to deal with CREXi. Rather, CREXi’s

counterclaims concern CoStar’s efforts to prevent

CoStar’s broker customers—not CoStar itself—from

dealing with CREXi, including by preventing those

brokers from sharing their listings and information on

their own websites with CREXi. 4-ER-572, ¶ 43.

Nevertheless, the district court dismissed CREXi’s

counterclaims, Pet. App. 57a, and entered final

judgment as to those counterclaims under Federal

Rule of Civil Procedure 54(b), teeing up an appeal,

Pet. App. 38a.

4. The court of appeals reversed. Pet. App. 28a. It

first concluded that CREXi had plausibly alleged that

CoStar wields monopoly power with direct evidence in

the form of supra-competitive prices and indirect

evidence in the form of CoStar’s 90%-plus market

share and the noted significant barriers to entry. Pet.

App. 12a–19a.

As to CREXi’s exclusive agreement allegations, the

court of appeals reasoned, “[t]o dismiss an exclusive

dealing claim just because a contract does not

expressly require exclusivity would be the type of

overly formalistic rule that the Supreme Court has

cautioned against in antitrust cases.” Pet. App. 22a

(citing Eastman Kodak Co. v. Image Tech. Servs., Inc.,

504 U.S. 451, 466–67 (1992)). Accordingly, at the

motion to dismiss stage, it would be improper to

dismiss CREXi’s exclusive agreement allegations

simply because CoStar’s agreements with brokers

facially disavow exclusivity given that CREXi

plausibly alleged that such disavowals were

contradicted “in practice” by other “specific provisions

in all four of CoStar’s contracts.” Pet. App. 25a. After

discussing how these contractual provisions work in

practice, the court recognized that CREXi’s examples

of brokers refusing to work with CREXi because they

believed they were foreclosed from doing so by their

contracts confirmed that CREXi’s allegations were

more than speculation. Pet. App. 24a–25a. In this

regard, the court of appeals’ decision did not rest on

the brokers’ impressions. Instead, the court relied on

brokers’ impressions only as further support for

CREXi’s allegations about the practical effect of the

terms CoStar has elected to include in its contracts.

Pet. App. 25a. The panel concluded that “[f]urther

proceedings may show that brokers misunderstand

the operation of these contracts. But at the pleading

stage, these allegations are sufficient to support an

inference that the contracts create an exclusive

relationship.” Id.

As to technological barriers, the court of appeals

concluded that the district court erred in

presumptively applying a refusal-to-deal framework.

The panel recognized that CREXi’s allegations

concerned not CoStar’s refusal to deal with CREXi but

CoStar’s efforts to prevent brokers from dealing with

CREXi: “A monopolist’s efforts ‘to limit the abilities

of third parties to deal with rivals’ is a matter of

exclusive dealing with the monopolist’s customers, not

a refusal to deal with the monopolist’s competitors.”

Pet. App. 21a (citing Novell, Inc. v. Microsoft Corp.,

731 F.3d 1064, 1072 (10th Cir. 2013)). The court then

concluded that CREXi plausibly alleged that CoStar

engaged in anticompetitive conduct by “blocking only

rivals’ access to otherwise publicly available listings

on brokers’ own websites without disclosing such

blockage” to brokers. Pet. App. 27a. Such a practice

“deceives [CoStar’s] customers and protects its

monopoly in a manner not attributable to competition

on the merits.” Id.

Thus, the court of appeals correctly held that

CREXi stated plausible counterclaims under both §§ 1

and 2 of the Sherman Act. Pet. App. 27a–28a.

REASONS FOR DENYING THE WRIT

I. THE DECISION BELOW CORRECTLY

APPLIES THIS COURT’S ESTABLISHED

FRAMEWORK FOR DE FACTO

EXCLUSIVE DEALING CLAIMS

The unanimous decision below allowed CREXi’s de

facto exclusive dealing counterclaims to proceed past

the motion to dismiss stage by carefully applying this

Court’s century-old guidance. That decision does not

warrant this Court’s review. There is no circuit split

regarding de facto exclusive dealing claims, and the

decision below is correct.

No Circuit Split Or Confusion Exists

Regarding De Facto Exclusive

Dealing Claims

Both the Clayton Act and the Sherman Act regulate

exclusive dealing arrangements. Tampa Elec. Co. v.

Nashville Coal Co., 365 U.S. 320, 327 (1961)

(evaluating exclusive dealing claim under Section 3 of

the Clayton Act); United States v. Columbia Steel Co.,

334 U.S. 495, 524 (1948) (analyzing exclusive dealing

claim under the Sherman Act).

For over a century, this Court has recognized that

the exclusivity inquiry turns not on a strict reading of

contractual language but on “practical effect.” United

Shoe Mach. Corp. v. United States, 258 U.S. 451, 457

(1922). Six decades ago, this Court reaffirmed this

point, explaining that “even though a contract does

‘not contain specific agreements not to use the goods

of a competitor,’ if ‘the practical effect is to prevent

such use,’ it comes within the condition of the section

as to exclusivity.” Tampa Elec., 365 U.S. at 326

(quoting United Shoe, 258 U.S. at 457) (alterations

adopted).

Petitioners contend (Pet. 9) that the courts of

appeals are nonetheless confused about whether and

how to apply the de facto exclusive dealing framework

in the context of the Sherman Act. But petitioners’

proffered circuit split is entirely illusory. Every

circuit to consider the question has recognized that de

facto exclusive dealing claims are cognizable under

the Sherman Act. And every circuit has faithfully

applied this Court’s framework to varying facts—none

of which conflicts with the decision of the court of

appeals in this case.

First, petitioners contend (Pet. 9–10) that the

Second Circuit has “rejected a de facto exclusive

dealing theory on facts similar to those presented

here,” citing United Air Lines, Inc. v. Austin Travel

Corp., 867 F.2d 737, 742 (2d Cir. 1989). But United

Air Lines is not in tension with the decision below.

As to petitioners’ threshold contention—that the

courts of appeals are confused about whether such a

theory is cognizable under the Sherman Act—United

Air Lines reflects no such confusion. Rather, the

Second Circuit considered the defendant’s de facto

exclusive dealing argument and rejected it because

“the provisions in the . . . contracts state that the

agreements are non-exclusive” and there was “no

indication that these terms were defeated by United’s

Long Island practices.” Id. at 742. In other words,

neither the contract terms themselves nor their

practical effect supported an exclusive dealing theory.

Nor does United Air Lines reflect any confusion

about how the de facto exclusive dealing theory

applies. In United Air Lines, the Second Circuit

considered testimony about individuals who were

reluctant to contract with competitors. Id. The

Second Circuit rejected that testimony only because

the individuals were outside Long Island, the relevant

market, and “evidence of United activities in areas

other than Long Island require more than mere

inferences to apply to United’s Long Island practices.”

Id. United Airlines does not suggest that evidence

from individuals within the relevant market would

not be sufficient.

Second, petitioners argue (Pet. 10–11) that the

Eighth Circuit has rejected de facto exclusive dealing

claims in two discount pricing cases. As to the

threshold question, petitioners’ cited cases expressly

recognize that “Section 1 claims that allege only de

facto exclusive dealing may be viable.” Concord Boat

Corp. v. Brunswick Corp., 207 F.3d 1039, 1058 (8th

Cir.), cert denied, 531 U.S. 979 (2000); Se. Mo. Hosp.

v. C.R. Bard, Inc., 642 F.3d 608, 612 (8th Cir. 2011)

(citing Concord Boat for the same proposition).

As to how to conduct the de facto exclusive dealing

inquiry, the Eighth Circuit’s cases reveal neither

confusion nor any contradiction with the decision

below. Both cases involved a so-called “golden

handcuffs” theory of de facto exclusivity—that

“discount programs amounted to de facto exclusive

dealing.” Concord Boat, 207 F.3d at 1054, 1060; see

also Se. Mo. Hosp., 642 F.3d at 612. In each case, the

defendant did not have any contract terms requiring

exclusivity, but offered various discounts to customers

based on share and volume of purchases. See Concord

Boat, 207 F.3d at 1044–45; Se. Mo. Hosp., 642 F.3d at

611. This manner of unfair pricing claims—not

present here—requires “great caution and a skeptical

eye” because “low prices benefit consumers regardless

of how those prices are set, and so long as they are

above predatory levels, they do not threaten

competition.” Concord Boat, 207 F.3d at 1060 (first

quoting Bathke v. Casey’s Gen. Stores, Inc., 64 F.3d

340, 343 (8th Cir. 1995); and then quoting Atlantic

Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340

(1990) (alteration adopted)); see also Se. Mo. Hosp.,

642 F.3d at 615 (quoting Concord Boat). Accordingly,

in both cases, the Eighth Circuit carefully analyzed

the facts and concluded they did not support a viable

unfair pricing theory.

Third, as petitioners even admit (Pet. 11), the

remaining circuits to consider whether de facto

exclusive dealing claims are cognizable under the

Sherman Act “have each recognized de facto exclusive

dealing as a cognizable claim.” Thus, petitioners’

threshold question can be entirely dismissed. There

is no confusion among the circuits as to whether such

claims are cognizable under the Sherman Act; every

circuit to consider the question, including the Ninth

Circuit here, recognizes that they are. Because no

confusion exists, this Court should not grant

certiorari.

Nor do the decisions of the Third, Eleventh, and

Tenth Circuits reflect any confusion about how to

analyze such claims. In each case that petitioners

cite, the court looked to the practical effect of the

challenged provisions and policies, in light of the

realities of the relevant market. Thus, in ZF Meritor,

LLC v. Eaton Corp., “there was sufficient evidence

from which a jury could infer that, although the

[agreements] did not expressly require the

[customers] to meet the market penetration targets,

the targets were as effective as mandatory purchase

requirements.” 696 F.3d 254, 282 (3d Cir. 2012), cert.

denied, 569 U.S. 958 (2013). That was so even though

the defendant did not actually terminate the

agreements when customers failed to meet their

targets; it was enough that the customers “believed it

might,” and “no risk averse business would jeopardize

its relationship with the largest manufacturer of

transmissions in the market.” Id. at 282–83.

Similarly, in LePage’s Inc. v. 3M, the court relied on

“powerful evidence that could have led the jury to

believe that rebates and discounts” offered to various

customers—again, a specialized claim not present

here—“were designed to induce them to award

business to 3M to the exclusion of LePage’s.” 324 F.3d

141, 158 (3d Cir. 2003), cert. denied, 542 U.S. 953

(2004). That evidence, the Third Circuit explained,

included accounts of two former customers who

stopped purchasing from LePage’s and instead

purchased exclusively from 3M. Id.

In United States v. Dentsply International, Inc.,

although the transactions at issue were “technically

only a series of independent sales,” the Third Circuit

again looked to the “economic elements involved,” and

concluded that they “realistically make the

arrangements here as effective as those in written

contracts.” 399 F.3d 181, 193 (3d Cir. 2005), cert.

denied, 546 U.S. 1089 (2006).

McWane, Inc. v. F.T.C. followed the reasoning in

Dentsply closely. There, too, a series of independent

sales nonetheless constituted exclusive dealing when

viewed “consistent with the Supreme Court’s

instruction to look at the ‘practical effect’ of exclusive

dealing arrangements.” 783 F.3d 814, 834 (11th Cir.

2015), cert. denied, 577 U.S. 1216 (2016) (quoting

Tampa Elec., 365 U.S. at 326–28).

Finally, in Chase Manufacturing, Inc. v. Johns

Manville Corp., the Tenth Circuit considered claims

that the defendant threatened customers to prevent

them from dealing with its competitors. 84 F.4th

1157, 1165–66 (10th Cir. 2023). The proper approach

to such claims, the Tenth Circuit made clear, “look[s]

to the reality of the [relevant] market and the

practical effect of [the defendant’s] conduct.” Id. at

1173 (citing Tampa Elec., 365 U.S. at 326–28).

Each case petitioners cite for the purpose of

demonstrating “confusion” among the circuits in fact

reveals the opposite. Every circuit recognizes that de

facto exclusive dealing claims are cognizable. And

every circuit approaches those claims the same way—

by considering the practical effect of the challenged

provisions and policies in light of the realities of the

relevant market. These decisions all apply the same

legal framework to differing facts. There is no circuit

split, no unresolved legal question, and no confusion

for this Court to address. The question presented does

not warrant this Court’s review.

The Decision Below Is Correct

Petitioners’ criticism of the decision below boils

down to a simple disagreement with the court of

appeals’ conclusion that CREXi “plausibly alleges that

specific provisions of each contract contradict the

express promise of non-exclusivity,” and that, “in

practice,” such provisions “require brokers to

exclusively use CoStar’s services.” Pet. App. 23a–24a.

But that conclusion accords with decisions of other

circuits and is correct.

The court of appeals correctly applied this Court’s

“practical effect” approach, finding that CoStar’s

contractual terms and technological barriers,

considered in light of the realities of the real estate

marketplace, practically mean that brokers who use

CoStar’s services are severely constrained from

working with competitors such as CREXi. Pet. App.

23a–25a. Petitioners’ disagreement with the Ninth

Circuit’s view of the facts does not warrant this

Court’s intervention.

Moreover, that disagreement hinges on

mischaracterizations of the decision below and

CREXi’s allegations. Petitioners contend that “a de

facto exclusive dealing theory divorced from both

contractual terms (Section 1) and any conduct by the

defendant (Section 2) is not cognizable.” Pet. 15–16.

This argument attacks a strawman; contrary to

petitioners’ retelling (Pet. 14), the court of appeals

nowhere held that “a de facto exclusive dealing claim

can exist even when the defendant takes no action at

all—when the alleged misconduct is squarely tied to

the mistakes of others.” That mischaracterization

ignores the express holding in the decision below that

CoStar’s contract provisions, not mere misunderstandings, support CREXi’s exclusive dealing claim.

As the court of appeals explained, CREXi plausibly

alleged that CoStar included provisions in its various

contracts that “forbid brokers from using or

reproducing content available” on CoStar’s sites in

connection with any other listing service; prevent

brokers from incorporating any portion of that content

into any other database; require brokers to treat “‘all

information obtained from the Service,’ including

broker’s own listings, as ‘proprietary’” to CoStar; and

require brokers “to agree that it ‘shall constitute a

prima facie breach’ of the [site] terms if CoStar

determines that ‘any third party,’ including a

competitor, ‘has access to property listings provided

by brokers and modified by CoStar.” Pet. App. 23a–

24a (emphasis added). Further, as the court of

appeals emphasized, “CREXi alleges that CoStar

leverages its market power to ensure these contract

terms are ‘non-negotiable’ for individual brokers.” Id.

at 24a. The Ninth Circuit concluded that CREXi

plausibly alleged that these provisions—not broker

misunderstanding —“in practice . . . require brokers

to exclusively use CoStar’s services” because “if

brokers provide data to CoStar, the terms forbid

brokers from also providing data to a competitor of

CoStar.” Id. This scheme, CREXi plausibly alleged,

“by design[] limit[s] brokers’ ability to use other listing

platforms.” Id.

Only after concluding that CREXi had plausibly

alleged that the contract terms constituted, in

practice, exclusive dealing requirements, did the court

of appeals turn to the three specific examples that

CREXi alleged. Pet. App. 25a. Taking CREXi’s

allegations as true, these three examples do not

represent “misunderstandings,” Pet. 14, at all—

rather, they represent precisely what CoStar intended

with its contract provisions.

Nor were these examples the sole basis for the

Ninth Circuit’s holding. Instead, they reinforced that

CREXi’s plausible “allegations of actual de facto

exclusivity are not speculation.” Pet. App. 24a. Thus,

the court of appeals correctly concluded that CREXi

had plausibly alleged a de facto exclusive dealing

arrangement based on the practical effect of CoStar’s

contract terms.

Petitioners’ next attack rests on the same

mischaracterization of the decision below and

CREXi’s allegations. Petitioners contend (Pet. 18)

that the Ninth Circuit’s decision is incompatible with

Tampa Electric and United Shoe because, in those

cases, “the contract itself effectively imposed an

exclusive relationship, even if it did not say that in so

many words.” But that is precisely what the Ninth

Circuit concluded CoStar’s contracts do, taking

CREXi’s plausible allegations as true. Petitioners’

suggestion (Pet. 18) that a court must disregard

entirely a contract’s practical effects so long as the

contract “expressly disavows exclusivity” cannot be

squared with this Court’s clear guidance that “[l]egal

presumptions that rest on formalistic distinctions

rather than actual market realities are generally

disfavored in antitrust law.” Eastman Kodak Co., 504

U.S. at 466–67.

Finally, petitioners contend (Pet. 18) that the Ninth

Circuit’s decision runs contrary to this Court’s

requirement of a “substantial foreclosure” showing in

exclusive dealing cases. But, once again, petitioners’

only basis for this assertion is that the Ninth Circuit’s

decision “allow[ed] a de facto exclusive dealing claim

to proceed based on nothing more than the

misunderstanding of a few customers.” Pet. 19. As

set forth above, the Ninth Circuit’s decision was in

fact based on a robust assessment of CoStar’s contract

provisions and CREXi’s allegations about their

practical effect. Nor are petitioners correct that the

decision below failed to adequately address

substantial foreclosure. As the Ninth Circuit

explained, “CREXi alleges that any exclusive

agreements CoStar entered into apply to all brokers

using CoStar’s services,” and thus if “CoStar has

monopoly power . . . over the markets covered by the

alleged agreements, then [CREXi] has also plausibly

alleged that those agreements foreclosed competition

in a substantial share of the relevant market.” Pet.

App. 10a. After a thorough analysis, the court of

appeals concluded that “CREXi plausibly alleges that

CoStar has monopoly power via direct and indirect

evidence.” Pet. App. 19a. And “because the allegedly

exclusive agreements cover the same market over

which CoStar allegedly holds monopoly power and the

agreements apply equally to all brokers using

CoStar’s services, CREXi has also plausibly alleged

that those agreements substantially foreclosed

competition.” Id. Petitioners do not challenge this

reasoning or these holdings in the petition. Instead,

petitioners’ challenge rests on a misreading of the

grounds on which the court of appeals based its

decision. The Court should deny review.

II. THE DECISION BELOW CORRECTLY

REJECTS THE APPLICATION OF THE

REFUSAL-TO-DEAL FRAMEWORK TO

THE ALLEGED COUNTERCLAIMS

Next, petitioners ask this Court (Pet. i) to grant

certiorari to answer the question whether “a refusalto-deal claim prohibited by Verizon Communications

Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S.

398 (2004), is cognizable if the plaintiff calls it

something else.” Petitioners’ framing itself makes

clear that this question does not warrant the Court’s

review. The answer is, of course, no, and no court of

appeals—including the decision below—has

suggested otherwise.

There Is No Circuit Confusion About

Trinko And Refusal-To-Deal Claims

Petitioners contend (Pet. 19–20) that the decision

below “implicates a circuit conflict,” seemingly about

whether courts of appeals faithfully apply Trinko.

But there is no conflict among the circuits; courts on

both sides of petitioners’ claimed split analyze refusalto-deal claims consistent with this Court’s clear

guidance.

First, the case petitioners assert (Pet. 21) “faithfully

applied Trinko,” Novell, Inc. v. Microsoft Corp., 731

F.3d 1064 (10th Cir. 2013) (Gorsuch, J.), comports

with the decision below. Novell involved a challenge

to Microsoft’s decision to stop sharing its own

intellectual property with its competitors directly.

Novell, a competitor, therefore had to write its own

code as a replacement for Microsoft’s code, causing

significant delay.

The Tenth Circuit carefully

articulated the distinction between exclusive dealing

claims, which may be cognizable, and refusal-to-deal

claims, which typically are not. As the Tenth Circuit

explained, “[S]ection 2 misconduct usually involves

some assay by the monopolist into the marketplace—

to limit the abilities of third parties to deal with rivals

(exclusive dealing), to require third parties to

purchase a bundle of goods rather than just the ones

they really want (tying), or to defraud regulators or

customers. By contrast, and ‘as a general rule . . . [,]

purely unilateral conduct’ does not run afoul of section

2—‘businesses are free to choose’ whether or not to do

business with others and free to assign what prices

they hope to secure for their own products.” Id. at

1072 (quoting Pac. Bell Tel. Co. v. Linkline Commc’ns,

555 U.S. 438, 448 (2009)). “Put simply if perhaps a

little too simply, today a monopolist is much more

likely to be held liable for failing to leave its rivals

alone than for failing to come to their aid.” Id.

The Tenth Circuit thus understood Novell’s claim to

challenge Microsoft’s decision not to share its own

intellectual property as a refusal to assist a rival. Id.

at 1079.

The Tenth Circuit then properly

distinguished such a claim from one based on conduct

by the monopolist designed to “limit the abilities of

third parties to deal with rivals.” Id. at 1072

(emphasis added).

Petitioners’ own citations confirm that the Tenth

Circuit correctly understands that the refusal-to-deal

framework does not bar otherwise legitimate

exclusive dealing claims. See Chase Mfg. Inc. v. Johns

Manville Corp., 84 F.4th 1157, 1173 (10th Cir. 2023)

(citing Novell and explaining that the district court

“applied the wrong standard” to an exclusive dealing

claim when it “borrowed . . . from refusal-to-deal-withrivals caselaw”). As the Tenth Circuit made clear, it

has “never extended a refusal-to-deal-with-rivals

analysis outside that situation, nor ha[s] [it]

mandated analyzing § 2 exclusionary conduct under

any solitary framework.” Id. The Tenth Circuit’s

approach thus confirms that a flexible, fact-specific

framework is appropriate when analyzing alleged § 2

exclusionary conduct.

Second, contrary to petitioners’ argument (Pet. 22),

the decision below is consistent with New York v. Meta

Platforms, Inc., 66 F.4th 288, 305 (D.C. Cir. 2023). In

that case, which involved a challenge to a Facebook

policy for app developers, the challenged policy “le[ft]

app developers entirely free to develop applications

for Facebook’s competitors.” Id. at 304. Here, as the

court of appeals concluded, CREXi plausibly alleged

that “if brokers provide data to CoStar, the terms

forbid brokers from also providing that data to a

competitor of CoStar.” Pet. App. 24a.

Third, petitioners suggest (Pet. 23–24) that the

Fourth and Seventh Circuits have incorrectly allowed

plaintiffs to “evad[e] the refusal-to-deal doctrine

through creative pleading.” Examination of those

cases, however, contradicts that suggestion.

In Duke Energy Carolinas, LLC v. NTE Carolinas

II, LLC, the Fourth Circuit concluded that it did not

need to analyze the plaintiff’s claims under the

narrow refusal-to-deal framework because “we

recognize [the plaintiff’s] claim that this conduct was

but a part of a larger scheme.” 111 F.4th 337, 366 (4th

Cir. 2024), cert. denied, --- S. Ct. ---, No. 24-917 (Jan.

12, 2026). But the Fourth Circuit’s approach did not

indicate any need for clarification of the applicable

standard. Rather, as the Solicitor General explained

in recommending denial of the writ, “[t]he circuits

broadly agree about whether and how a court

adjudicating a Section 2 claim may aggregate the

discrete constituent parts of a defendant’s overall

course of conduct. Across the country, courts analyze

the particular challenged acts, apply conduct specific

tests where appropriate, and otherwise evaluate the

alleged monopolistic conduct holistically.” Br. of the

United States as Amicus Curiae, No. 24-917, at 17

(Dec. 1, 2025). Like here, the Duke “Petitioner’s core

dispute with the decision below is not over that rule,

but rather its application.” Id. at 13.

Similarly, petitioners attempt to conjure support

for their argument based on Viamedia, Inc. v. Comcast

Corp., 951 F.3d 429, 472 (7th Cir. 2020), cert denied

141 S. Ct. 2877 (2021).

Yet petitioners’

characterization of that opinion as permitting a

plaintiff to repackage a refusal-to-deal claim as a

tying claim cannot be squared with the opinion

itself. Both the panel opinion and the partial dissent

analyzed the refusal-to-deal and tying claims

separately. Id. at 453-80; see also id. at 485 (Brennan,

J., concurring and in part and dissenting in part)

(agreeing plaintiff “plausibly alleged an antitrust

violation and is entitled to reversal and remand on its

refusal-to-deal claim,” but disagreeing with the

panel’s summary judgment ruling “on [plaintiff’s]

tying claim because the undisputed facts do not

present evidence of an illegal tie”).

Petitioners raise no novel legal question requiring

this Court’s review—indeed, petitioners raise no legal

question at all. This Court’s approach toward refusalto-deal claims is well established. So too is this

Court’s preference to “resolve antitrust claims on a

case-by-case basis, focusing on the ‘particular facts

disclosed by the record.’” Eastman Kodak Co., 504

U.S. at 466–67 (quoting Maple Flooring Mfgs. Assn. v.

United States, 289 U.S. 563, 579 (1925)). Each case

petitioners cite looked carefully at the particular facts

to assess the viability of each plaintiff’s particular

antitrust claims. These cases reveal neither a conflict

nor any legal issue warranting this Court’s review.

B. The Decision Below Correctly

Characterized The Counterclaims

As Exclusive Dealing Claims

The analysis in the decision below of CREXi’s

claims under the exclusive dealing framework is in

line with Trinko and correct. Petitioners’ arguments

to the contrary again rest on mischaracterizations of

the reasoning of the decision below.

First, petitioners contend (Pet. 25) that the decision

below “runs directly contrary to Trinko itself,” because

the court of appeals “should have followed this Court’s

lead and applied the refusal-to-deal framework.”

Petitioners misunderstand both Trinko and the

decision below. In Trinko, this Court considered

allegations “that Verizon denied interconnection to

rivals in order to limit entry.” 540 U.S. at 407.

Recognizing that “[f]irms may acquire monopoly

power by establishing an infrastructure that renders

them uniquely suited to serve their customers” and

that “[c]ompelling such firms to share the source of

their advantage is in some tension with the

underlying purpose of antitrust law,” this Court

rejected Verizon’s claim. Id. at 407–08.

As the decision below recognizes, CREXi’s claims

are fundamentally different from Verizon’s. As the

court of appeals explained, “CREXi contends that

CoStar’s exclusionary practices kept CoStar’s broker

customers—not CoStar itself—from dealing with

CREXi.” Pet. App. 21a. Quoting Novell, the court of

appeals explained that CREXi’s counterclaims attack

CoStar’s efforts “to limit the abilities of third parties

to deal with rivals.” Id. (quoting Novell, 731 F.3d at

1072). CREXi’s counterclaims do not seek to force

CoStar to provide CREXi and CREXi’s customers

access to CoStar’s own platforms, as would be parallel

to Trinko. Instead, CREXi challenges CoStar’s

practice of setting up technological barriers that

prevent brokers from sharing their own information,

on their own websites, with CREXi.

Next, petitioners assert (Pet. 26) that the court of

appeals erred by “ignor[ing] the reality of what duty

CREXi sought to impose on CoStar: a duty to give

rivals like CREXi direct access to CoStar’s products

and intellectual property.” Petitioners again

mischaracterize the decision below and CREXi’s

claim. As the court of appeals clearly explained,

CREXi’s claim is that CoStar “constructed

technological barriers that impede CREXi’s ability to

access brokers’ listing information that is otherwise

available to the public on brokers’ own websites.” Pet.

App. 25a (emphasis added).

CoStar does not

demonstrate how blocking CREXi from accessing

brokers’ information, on brokers’ own websites,

created and owned by the brokers, and simply hosted

by CoStar’s LoopLink tool protects CoStar’s products

or intellectual property in any way.

Finally, petitioners’ contention (Pet. 26) that the

decision below “creates the same perverse incentives

Trinko was designed to avoid” rests on the same

misconception.

Petitioners never identify what

“source of their advantage,” Trinko, 540 U.S. at 407–

08, CREXi seeks to force CoStar to share. That is

because there is none. Instead, CoStar has designed

systems that prevent brokers from sharing their own

information with CREXi, even when that information

is publicly available. The decision of the court of

appeals simply allows discovery to proceed on a claim

that CoStar blocks brokers who use LoopLink from

sharing their own listing information with CoStar’s

competitors. The decision below properly analyzed

this claim under the exclusive dealing framework and

correctly allowed it to proceed.

III. THIS CASE PRESENTS A POOR

VEHICLE FOR REVIEW

Even if the questions presented warranted review

(they do not), this case presents a poor vehicle to

consider them for three reasons.

First, the procedural posture of this case does not

lend itself to this Court’s review.

As CoStar

acknowledges, “this case is in an interlocutory

posture.” Pet. 30. This Court typically requires

“special circumstances [to] justify the exercise of [its]

discretionary certiorari jurisdiction to review [an]

interlocutory order.” Office of Senator Mark Dayton v.

Hanson, 550 U.S. 511, 515 (2007); see also Abbott v.

Veasey, 137 S. Ct. 612, 613 (2017) (statement of

Roberts, C.J., respecting denial of certiorari)

(declining to grant certiorari where “[a]lthough there

is no barrier to our review, the . . . claim is in an

interlocutory posture, . . . [and] the District Court has

yet to enter a final remedial order”); Taylor v. Riojas,

592 U.S. 7, 11 (2020) (Alito, J., concurring in the

judgment and writing separately to suggest certiorari

was improper) (noting in a case appealed pursuant to

Rule 54(b) that “[w]e are generally hesitant to grant

review of non-final decisions”); Va. Military Inst. v.

United States, 508 U.S. 946, 947 (1993) (opinion of

Scalia, J., respecting denial of certiorari) (“We

generally await final judgment in the lower courts

before exercising our certiorari jurisdiction.”).

Here, the procedural posture renders this Court’s

review unnecessary and untimely. The court of

appeals has simply reversed the district court’s

dismissal of CREXi’s counterclaims and remanded for

further proceedings. Pet. App. 28a. CoStar will still

have every opportunity to litigate through summary

judgment and trial whether a de facto exclusive

dealing claim is indeed available on these facts and

whether CoStar in fact imposes technological barriers

to competition, as alleged. See Taylor, 592 U.S. at 12

(Alito, J., concurring in the judgment and writing

separately to suggest certiorari was improper) (noting

the fact that the petitioner could still prevail below

should have been considered a reason not to grant

certiorari).

Second, the applicable standard of review is

ill-suited to the questions petitioners have raised. The

court of appeals was quite clear that it was merely

evaluating CREXi’s counterclaims “at the pleading

stage”—assuming all facts alleged as true and

drawing reasonable inferences in CREXi’s favor. Pet.

App. 25a. Indeed, the discrepancy here between the

district court’s ruling in favor of CoStar and the court

of appeals’ ruling in favor of CREXi is rooted in the

fact that the court of appeals accepted as true CREXi’s

allegation “that, in practice, [CoStar’s broker

agreements] require brokers to exclusively use

CoStar’s services,” Pet. App. 24a, while, to the

contrary, the district court improperly drew

inferences favorable to CoStar, Pet. App. 46a.

Petitioners ask the Court to address “[w]hether a ‘de

facto’ exclusive dealing claim is cognizable under the

Sherman Act in the absence of exclusive contractual

terms, programs, or policies,” Pet. i, ignoring CREXi’s

many allegations that there are exclusive contractual

terms, programs, and policies at issue here. Such a

question cannot be answered at the pleading stage

where reasonable inferences must be made in the

plaintiff’s favor.

Finally, this case is a poor vehicle because factual

disputes overshadow the purportedly legal questions

that petitioners construct. For example, petitioners

contend that the court of appeals failed to give

adequate weight to the allegation that “over 500

CREXi customers worked with both CoStar and

CREXi,” which, in petitioners’ view, should weigh

against CREXi’s examples of brokers believing they

were contractually prohibited from working with

CREXi. Pet. 6. And petitioners contend that CREXi’s

inability to access brokers’ own listings on brokers’

own websites due to CoStar’s technological barriers

amounts to nothing more than a bid for “direct access

to CoStar’s products and intellectual property,”

challenging CREXi’s factual contention that it has no

meaningful way to access brokers’ listings other than

through the brokers’ own websites. Pet. 26. The

Court need not weigh in on such factual disputes.

See Sup. Ct. R. 10; Kyles v. Whitley, 514 U.S. 419, 460

(1995) (Scalia, J., dissenting and suggesting certiorari

was improper) (“What we have here is an intensely

fact-specific case in which the court below

unquestionably applied the correct rule of law and did

not unquestionably err—precisely the type of case in

which we are most inclined to deny certiorari.”); Tacon

v. Arizona, 410 U.S. 351, 352 (1973) (“Since this is

primarily a factual issue which does not, by itself,

justify the exercise of our certiorari jurisdiction, the

writ of certiorari is dismissed as improvidently

granted.”).

Petitioners’ disputes with the decision below are

factual, not legal, making this case a poor vehicle to

consider any legal questions about the scope of de

facto exclusive dealing claims or refusal-to-deal

claims.