Attorneys for REX did not return HousingWire’s email to confirm if their plaintiff client was planning to file a writ, but the application for an extension of time suggests that a petition is in the works.
It’s currently unknown exactly which decision REX would appeal. But the firm’s initial appeal to the Ninth Circuit Court of Appeals dealt with a lower court’s summary judgment ruling that 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.
The appeals court reaffirmed the lower court’s ruling in March 2025. A little over a month later, the appeal’s court denied REX’s request for a rehearing en banc.
REX’s legal saga 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. This precipitated the two-tab design for MLS listings and “other listings.”
In May 2022, REX ceased its brokerage operations. A little over a year later, each of the three parties involved in the case 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 its 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.
Last month, NAR repealed its optional no-commingling rule. At the time, NAR said the decision was based on MLS community feedback about the rule’s declining usage and relevance in local marketplaces.
