DOJ debates ‘commingling’ with Zillow and NAR in REX case

This isn’t the very first time the DOJ has actually evaluated in on the case. In June 2024, the agency submitted an amicus brief with the Ninth Circuit court arguing that the court took an “insufficient approach that creates danger that associations like NAR could escape antitrust analysis with optional guidelines.”

“There was no legal responsibility to carry REX’s listing,” Engel said. There was no conspiracy to boycott REX, no initiative to damage REX.”

Those “other feasible concepts,” Wang claimed, suggest that the fostering of an optional rule is, by itself, a concerted activity, and it can be an invitation for others to join in a typical plan– possibly drifting right into antitrust territory.

Zillow stated it made the adjustment to adhere to NAR’s “no-commingling” policy, and in feedback to the DOJ’s amicus short last year, restated that the business has actually “openly advocated against this policy for numerous years due to the fact that we believe all providing data need to be shown in one place.”

“There was no legal responsibility to lug REX’s listing,” Engel claimed. “The district court found that there was merely no agreement because Zillow bent over backwards. There was no conspiracy theory to boycott REX, no effort to damage REX.”

Speaking to a panel of Ninth Circuit courts in Honolulu on Feb. 13, DOJ lawyer Alice Wang suggested for vacating a 2023 jury choice entailing Zillow, the offender in case, and the low-fee brokerage firm Realty Exchange (REX). NAR was initially a defendant as well yet was dropped in 2023.

Wang said the DOJ was participating in the hearing to secure the “lawful structure for concerted activity”– meaning the collection of rules that ensure collaborated actions in between companies or individuals don’t breach antitrust or other regulations. She suggested that the 2023 decision– which was based on the premise that NAR’s commingling rule is optional– really did not take into consideration alternate interpretations of the guideline.

Christopher Michel, standing for NAR, responded to that the commingling rule is certainly optional and “not a contract with anyone to do anything.” It was individual MLS plans, not NAR, that called for Zillow to divide out non-MLS listings, he said.

REX sued Zillow in 2021, declaring that the search portal utilized deceitful techniques to conceal non-MLS listings by relegating them to a different search results page tab, dramatically decreasing website traffic to those listings and producing an unreasonable restriction of profession.

Steven Engel, standing for Zillow, noted that the search portal picked to present REX’s listings totally free, including that REX hasn’t established any type of proof of a contract with NAR to bench or cancel the brokerage firm’s listings.

The courts zeroed in on the optional aspect of the commingling guideline, noting that only 71% of MLSs abide by it. Standing For REX, Ursula Ungaro suggested that while the regulation was optional for MLSs, it was basically compulsory for Zillow due to the fact that the site would certainly otherwise lose accessibility to the IDX feed that gives it with MLS listings.