The Ninth Circuit Court of Appeals yesterday affirmed a lower court decision denying listing service startup REX’s attempt to revive claims that Zillow and the National Association of REALTORS® (NAR) conspired to implement the “no-commingling” rule in violation of antitrust statutes, as the long-running lawsuit appears to have finally fizzled.
In a six-page ruling, Judges Sidney Thomas, Daniel Bress and Ana de Alba wrote that REX—a Texas-based discount brokerage that originally sued NAR and Zillow back in 2021—had failed any “concerted action” by defendants, and also could not retroactively allege a conspiracy between individual MLSs and Zillow.
“Each NAR-affiliated multiple listing service independently chose whether to adopt the rule, and indeed twenty-nine percent of them did not. The rule was in fact optional and does not establish a(n) (antitrust) agreement by itself,” the three-judge panel wrote.
The ruling comes swiftly after oral arguments, which notably drew participation from the Department of Justice (DOJ) Antitrust Division. On February 13, a lawyer for the DOJ had explicitly argued that optional rules created or enforced by NAR or MLSs could be “mandatory in nature.”
That clearly did not convince the Ninth Circuit, whose decision is likely to represent the end of the claims by REX, which has argued that the “no-commingling rule” was a way to ensure non-MLS companies could never compete with REALTOR®-controlled MLS listings.
In a statement provided to RISMedia, an NAR spokesperson called the lawsuit “meritless,” and said the organization was ready to put the long-running controversy in the rearview.
“In affirming the decision of the district court, the appeals court emphasized what we’ve said from day one—NAR’s no-commingling rule never constituted an antitrust violation. The rule is optional, leaving MLSs the choice whether to adopt it,” the spokesperson said.
A jury previously ruled against REX after an eight-day trial late in 2023—although by that time, NAR had already been dropped from the case. REX had sought a new trial based on what the company claimed were improper jury instructions.
Representatives for REX could not immediately be reached for comment. Scrutiny of policies like the no-commingling rule are likely to continue, however, most notably from the DOJ, which has continued to stake out an interest in NAR policies and practices beyond changes made through the class-action lawsuit settlements. In other cases—and in its own separate enforcement inquiry—the DOJ has indicated it is scrutinizing mandatory buyer agreements, as well as the Clear Cooperation Policy.
