The Ninth Circuit Court of Appeals has decided not to conduct a full court review of REX Real Estate‘s appeal en banc. This decision was communicated in a recent order by Judges Daniel Bress, Ana de Alba, and Sidney R. Thomas.
While Judges Bress and de Alba voted against the en banc hearing, Judge Thomas was in favor of it. However, given the majority vote and the fact that no other judges from the appeals court expressed the need for a vote on the rehearing, the request by REX was ultimately declined.
The request for a full court hearing was initiated by REX in mid-March, seeking a review of a prior judgment by all the judges of the Ninth Circuit. This appeal was initially examined by a three-judge panel in mid-February and challenged a previous decision from a U.S. District Court. This ruling found that the National Association of Realtors (NAR) and Zillow had not violated antitrust laws, despite NAR implementing a no-commingling policy and Zillow subsequently altering its website to comply with this rule.
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In its petition, REX argued that the original panel’s decision was flawed, particularly criticizing the conclusion that Zillow had independently redesigned its website without evidence of joint action. REX contended that the interpretation that the rule does not constitute direct evidence of collective action was a clear and grave error.
Although REX has not yet exhausted every legal avenue, the ongoing legal battle, which started in March 2021 following Zillow’s adjustment of its search results to comply with NAR’s optional no-commingling rule, seems to be approaching a conclusion.
Zillow has consistently stated its opposition to the no-commingling rule, claiming it was compelled to adopt the rule in order to continue receiving IDX feeds from MLSs, which led to the segregated tab layout for MLS and non-MLS listings.
After halting its brokerage operations in May 2022, REX, along with the other parties, filed motions for summary judgment in mid-2023 regarding various aspects of the lawsuit.
Judge Thomas Zilly, presiding over the case, dismissed the antitrust allegations against NAR and Zillow submitted by REX. However, he allowed REX’s claims of false advertising under the Lanham Act and the claim of unfair or deceptive trade practices under Washington’s Consumer Protection Act to proceed.
During the trial in September 2023, the court sided with Zillow on the outstanding allegations. Approximately six weeks later, REX sought a new trial, alleging that it had been unjustly barred from presenting crucial testimony about agent commissions to the jury.
A Seattle jury eventually concluded that REX failed to demonstrate that Zillow engaged in false advertising when it placed non-MLS listings in a separate section of its website. The jury also accepted Zillow’s defense against REX’s claim of deceptive and unfair practices.
Following the denial of its request for a new trial by Judge Zilly, REX initiated an appeal in February 2024.
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Hi, I’m Ashley from the Decatur Metro team. I share essential information for a sustainable and responsible lifestyle.
