REX to appeal after losing latest battle with Zillow
A jury ruled that Zillow's display of non-MLS listings was not deceptive, and a judge denied a request for a new trial. REX now says it will appeal.
The Real Estate Exchange (REX) has not given up in its fight with Zillow.
It seemed that the low-fee brokerage, which ceased operations in May 2022, was out of options after a judge ruled against the firm last month, denying its motion for a new trial.
But on Feb. 5, REX filed documents stating that it is taking the case to the Ninth Circuit Court of Appeals. REX attorneys said they are not only appealing the most recent ruling, but many of the past judgments, including the dismissal of antitrust claims in August.
How we got here: REX sued Zillow in 2021, claiming that the search portal used deceptive practices to conceal non-MLS listings in search results. Starting in Jan. 2021, Zillow moved non-MLS listings to a separate search results tab on its website. This change significantly reduced traffic to those listings, which REX claimed was an unreasonable restraint of trade.
Zillow said it made the change to comply with NAR's "co-mingling" policy that prevents real estate sites which use IDX feeds from displaying non-MLS listings alongside MLS listings.
The case went to trial in September 2023, and a Seattle jury disagreed with REX's allegations, prompting the brokerage to request a new trial.
On Jan. 18, U.S. District Court Judge Thomas Zilly ruled on the motion and denied that request.
The National Association of Realtors was originally a defendant in the case but was dropped after the judge ruled that REX's antitrust claim was without merit.
Why REX wanted a new trial (and why the judge said no): In its motion requesting a new trial, REX claimed the court erred in instructing the jury, preventing them from considering testimony on real estate commission rates in other countries and limiting REX's rebuttal defense. These details were important to REX's claim that Zillow violated Washington State's Consumer Protection Act.
In his 14-page document denying the motion, Judge Zilly said REX was well-represented by multiple attorneys who were given "ample opportunities to file motions and other briefs, offer objections to and propose alternative jury instructions, present testimony and other evidence, and argue the merits of its case to the jury."
What Zillow had to say: In response to REX's decision to appeal, Will Lemke, Zillow's corporate communications manager, said "REX's claims have been without merit since the start of this matter, and a jury has already agreed. As we move forward, we are focusing on what matters most: helping empower our customers in real estate."