Two months earlier, Zillow started moving houses that were not mentioned on the MLS, outside the first search results of the users and on a second tab. This adhered to an optional NAR rule, which prevents those who choose to accept MLS listings with non-MLS listings. Despite the fact that it did not support this rule, Zillow claims that it was forced to assume to obtain IDX-Feeds from MLSS who had the design of two tabs for MLS listings and “other lists”.
In May 2022, Rex stopped his brokerage activities. And just over a year later, the three parties involved in the case that each submitted Motions for a short judgment About the whole of the court case or parts of it.
Judge Thomas Zilly, who supervised the case, rejected Rex’s antitrust claims against Nar and Zillow. But he allowed the false advertising claim of the discount broker under the Lanham ActTogether with a claim for unfair or misleading commercial practices under the state of Washington’s Consumer Protection Act, to stand.
During a trial in September 2023, the court ruled in favor of Zillow on the remaining charges. About six weeks later, Rex submitted his motion for a new process. In the request, Rex argued that it was prevented from presenting testimony about agent committees to the jury.
A jury in Seattle ultimately discovered that Rex did not proved that Zillow used false advertisements in his decision to post non-MLS entries on another part of the website, and that Zillow proved his defense about the second statement of Rex that is deceptive and deceptively acted unfairly.
Rex appealed against Zilly’s opinion and refused a new trial in February 2024.
Zilly ruled that the judgment of the jury was not the result of a “procedural error” or a “error on the part of the court”, but because of the shortcoming of Rex in presenting evidence that the jury convinced that it had been damaged . As a result, Zilly ruled in January 2024 that Rex would not get a new process.
The DOJ became involved in the appeal in June 2024 when it submitted an Amicus Curiae letter. Just like Rex, the Doj had problems with how the court dealt with the case.
The DOJ argued that, despite the fact that it is optional, the “no commingling” rule of Nar can still support anti -competitive behavior, something that the court did not fully investigate in its ruling.
In submitting, the DOJ sketched in three ways in which it is of the opinion that optional rules can include coordinated action by the parties involved in its establishment or implementation.
1) A so -called optional rule may be mandatory in practice.
2) The approval of an association of an optional rule can be joint action itself.
3) An optional rule can invite others to participate in a common plan.
The Doj repeated these three frameworks during the five minutes of the time it was awarded to speak in the profession.
Alice Wang, who represented the Doj during the hearing, said that the Department was there “to protect the legal framework for joint action.”
Wang noted that Nar and Zillow do not dispute any of these theories in their archives at the court. According to Wang, there are aspects of the scheme to separate and hide alleged offers that fit into the third framework that the Doj has presented by Rex.
“As the court discovered, NA has drawn up and taken over the non-command rule and it published the handbook, the rule in his handbook, for the MLSS to adopt. There were also indications in the file that the relevant provisions of the MLSS handbook prohibited the rule of making changes, so that all members would take the same rule if they choose to do this. And then we have action showing that acceptance, “Wang said.
“The court ruled that a majority of the MLSS who accepted invitation and chose to take the non-commanding rule. And then they require that their members, such as Zillow, implement and follow the non-commanding rule. “
The DOJ was of the opinion that the court only considered the first framework, determined that the rule was optional and that there was no enforcement mechanism and continued.
“If there is no enforcement mechanism, it probably suggests that the rule is really optional,” Wang argued. “But under theory three, for example, there is no need to be enforcement mechanism to have an invitation for a common plan that is subsequently assumed.”
As a result, the DOJ urged the Court of Appeal to leave Zilly’s decision and to return the case to the lower court.
When asked whether the rule was really optional, Ursula Ungaro, who spoke on behalf of Rex, argued that the rule was no longer optional when an MLS accepted it. This forced all participants to adhere to, and that is how Zillow came to use the non-commanding rule to access IDX-Feeds.
“If the MLS has accepted it, the rule required the MLSS to impose the rule on the MLS participants who are like the subscribers in the MLS,” said Ungaro. “It is optional at one level, but it is mandatory if the MLS accepts it.”
According to Ungaro, Zillow-Die is said to have been a vocal critic of the non-commanding rule-his two-TAB website design would not have taken over if they are not for the rule. By separating the Rex offers from MLS -Zillow became an active member of the conspiracy, she said.
In their refutations of the DOJ and Rex arguments, Nar and Zillow both noted that only 71% of the MLSS had adopted the rule. Nar added that it did not know this figure until it was forced to compile the data as part of the discovery for this suit.
“I think Rex would have a stronger thing if it was 99.9%,” said Chris Michel, the legal adviser of Nar during the hearing. “Some of the largest MLSS, including the California Regional MLSThe largest in the country has not taken over. They remain the largest MLs in the country without consequences of NAR, and not only does Nar impose no consequences, we do not even follow which MLSS does. “
Michel was also about the claim of Rex that Zillow has entered into a conspiracy with NAR.
“First and foremost, the optional model rule of Nar is not an agreement with someone to do something. It’s completely optional, “said Michel. “As far as Zillow was obliged not to merge his entries, this is due to the intervening decisions of the various MLSS.”
Steve Engel, the lawyer of Zillow, told the court that when it comes to discussing the optionality of rules, this is not the case to tackle it because the rule was not optional for Zillow. Engel claimed that Zillow signed up for IDX Feeds and had to implement the rule within the jurisdictions of the MLSS that the rule had adopted.
“The court has rightly given a brief judgment about the file because Rex had not drawn up any evidence of an agreement between Nar and Zillow to boycotting, degrade, hide the offers of Rex,” said Engel.
He also noted that Zillow created his two-TAB website design independently and repeated the fact that Zillow Nar had lobby against the rule.
At the end of the arguments, the court noted that the case had been submitted. It is unclear when the Court of Appeal will spend its decision.
