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2 days ago
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The Ninth Circuit Court of Appeals will not be rehearing the appeal of REX Real Estate en banc. In an order filed on Wednesday, Judges Daniel Bress, Ana de Alba and Sidney R. Thomas notified the parties of their decision.
Both Judge Bress and Judge de Alba denied the petition, while Judge S.R. Thomas recommended it. Due to the two-to-one majority, and the fact that the full appeals court had been advised of the petition and no judge requested a vote as to whether to rehear the matter en banc, the petition was denied.
REX filed the petition in mid-March, in which it asked for a rehearing of its appeal by all the judges in the Ninth Circuit Court of Appeals. The appeal, which is of a U.S. District Court’s summary judgment ruling that the National Association of Realtors (NAR) and Zillow did not break antitrust laws when NAR promulgated its no-commingling rule and Zillow redesigned its website in order to follow the rule, was originally heard by a three-judge panel in mid-February.
In its petition, REX claimed that the panel’s opinion was based on “the absence of evidence of concerted action, and the conclusion that Zillow ‘independently re-designed its website.’” REX asserted that the panel’s view that the rule itself is not direct evidence of concerted action “is flat wrong and obviously so.”
While REX has not exhausted all legal options, it appears we are possibly nearing the end of the road for this legal saga, which began in March 2021, two months after Zillow began moving homes not listed on the MLS out of initial user search results and onto a second tab, in adherence with NAR’s optional no-commingling rule.
Zillow has maintained that it does not support the rule, but that it was forced to adopt it to obtain IDX feeds from MLSs that had, precipitating the two-tab design for MLS listings and “other listings.”
In May 2022, REX ceased its brokerage operations. And a little over a year later, the three parties involved in the case each filed motions for summary judgment on either the entirety of the lawsuit or portions of it.
Judge Thomas Zilly, who oversaw the case, dismissed REX’s antitrust claims against NAR and Zillow. But he allowed the discount brokerage’s false advertising claim under the Lanham Act, along with a claim for unfair or deceptive trade practices under the state of Washington’s Consumer Protection Act, to stand.
At a trial in September 2023, the court ruled in favor of Zillow on the remaining charges. Roughly six weeks later, REX filed its motion for a new trial. In the request, REX argued that it was unfairly prevented from presenting testimony about agent commissions to the jury.
A Seattle jury ultimately found that REX did not prove Zillow used false advertising in its decision to put non-MLS listings on a different section of the website. It also found that Zillow proved its defense on REX’s second claim that Zillow acted deceptively and unfairly.
REX filed its appeal in February 2024 after Zilly denied its motion for a new trial.
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