REX’s petition for rehearing of its appeal denied

By BrokerOwner.net April 17, 2025 Housing News

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.