With the September trial date quickly approaching, thing are starting to heat up in REX Real Estate’s ongoing antitrust lawsuit against the National Association of Realtors (NAR), Trulia and Zillow.
On Friday, all three parties filed motions for summary judgment on at least some issues, if not the entire lawsuit.
The lawsuit was originally filed by REX in March 2021 and alleges that changes made to Zillow’s website “unfairly hides certain listings, shrinking their exposure and diminishing competition among real estate brokers.”
Two months prior, in January 2021, Zillow began moving homes out of its initial search results for sellers who chose not to use agents adhering to the NAR and local multiple listing service (MLS) practices.
REX ceased its brokerage operations in mid-May of 2022.
According to Zillow’s motion for summary judgement, Zillow changed its website after making the decision to swap to the “gold standard source of listings data,” the Internet Data Exchange (IDX) feed that the multiple listing services use. Zillow said that it joined the MLSs to guarantee access to the IDX feeds.
After years of going back and forth, filing various motions to compel during the discovery phases and countersuits, both Zillow and NAR filed separate motions on Friday for summary judgement for the lawsuit.
According to NAR’s filing, after the discovery phase, “it remains undisputed that the agreement between NAR, MLSs and Zillow to ‘segregate, conceal, and demote’ REX’s listings on Zillow’s website never happened, the changes to Zillow’s website did not harm competition, and the purported decline in REX’s business was not caused by hard to competition.”
NAR’s lawyers argue that it is an “undisputed fact” that there is no direct evidence of an agreement between NAR, MLSs and Zillow to separately display MLS and non-MLS listings on Zillow’s website.
The trade group also stated that the rule cited by REX (Section 18.3.11 of the NAR Handbook), which reads: “Listings obtained through IDX feeds from Realtor Associations MLSs where the MLS participant hold participatory rights must be displayed separately from listings obtained from other sources. Listings obtained from other sources (e.g. from other MLSs, from non-participation brokers, etc.) must display the source from with each such listing was obtained,” is an optional rule.
In addition, NAR stated that it does not enforce or monitor the application of optional rules, nor does it “tell participants (like Zillow) how to design their websites to comply with local rules.”
In an emailed statement, Mantill Williams, a NAR spokesperson, wrote: “NAR continues to believe this lawsuit is without merit and remains confident we will ultimately prevail. NAR guidelines and local broker marketplaces create highly competitive markets, empower small businesses and ensure equitable home ownership opportunities, superior customer service and greater cost options for all buyers and sellers.”
Like NAR, Zillow maintains in its filings that its decision to join the MLSs and change its website design were made independently.
“There is zero direct evidence of any agreement involving both Zillow and NAR, let alone evidence of an agreement between them to exclude discount brokers like REX,” Zillow’s motion reads. “Nor can REX point to sufficient circumstantial evidence that could tend to disprove that Zillow acted independently in complying with the various local No-Commingling Rules that are at the center of REX’s claim.”
The firm also claims that REX “seized upon Zillow’s website design change to hide its own business failings.”
“We continue to maintain the claims made in REX’s lawsuit are without merit,” a Zillow spokesperson wrote in an email. “REX chose to use Zillow’s services to advertise their for-sale properties on Zillow – for free. Zillow has consistently advocated for outdated rules to be changed to allow the broader display of all listings on all platforms, including For Sale By Owner and listings from other companies like REX. The evidence clearly shows that Zillow’s business decisions were squarely focused on improving the data on our site and the experience for customers.”
REX, however, sees things a bit differently and has asked the court for summary judgement on two issues.
The first item REX takes issue with are NAR’s and Zillow’s statements that say it is an “undisputed fact” that there was no agreement between NAR, the MLSs and Zillow to separately display MLS and non-MLS listings on Zillow’s website.
According to REX’s lawyers, all that is required to prove that there was an agreement is a “meeting of the minds” and that “the understanding may be tacit and can arise without verbal communication.”
The second claim REX is asking the court to pass judgement on is the element of “falsity,” as it alleges that Zillow “falsely labeled REX listings as ‘Other Listings’ rather than ‘Agent Listings’ when REX’s listings were in fact offered by licensed real estate agents.”
“It is literally false not to characterize REX’s listings as ‘Agent Listings,’” REX wrote in the motion. “Placing REX listings in the ‘Other listings’ category when juxtaposed with “Agent Listings” as the only other option is also literally false by necessary implication. Zillow’s display is not only false, it is also misleading.”
When asked for additional commentary, REX’s lawyers at Boise Schiller wrote in an email that they feel their “arguments are clearly stated in the motions.”
Rulings on these motions are expected in the coming weeks.
