REX petitions Supreme Court to hear its antitrust suit

"According to the petition, while the Ninth and Tenth Circuits have deemed optional rules, which the no-commingling rule was, as non-conspiracies due to their optional nature, other circuits, including the First, Third, and Fifth, as well as guidance form the Department of Justice (DOJ) have ruled that optional rules can constitute a conspiracy. In addition to this, REX claims that NAR, in its rule-making capacity, is itself a conspiracy because competitors are coming together to promulgate rules, which counts as concerted action, violating antitrust laws."

"REX also maintains that, despite Zillow's pushback against the no-commingling rule, by changing its website design to comply it was actively participating in the alleged conspiracy. In the petition, REX maintains that the no-commingling rule promulgated by the alleged conspiracy harmed competition and caused REX to go out of business, and that it also led to inflated agent commissions. Additionally, REX argues that allowing optional rules to escape scrutiny sets a dangerous precedent."

"If uncorrected, the district court's incomplete approach creates a risk that associations like NAR could evade antitrust scrutiny for many anticompetitive schemes by using optional rules, the writ states. Vacatur and remand are appropriate for the district court to fully consider whether there is adequate evidence of concerted action under the correct legal framework. REX first indicated a desire to petition the Supreme Court to hear its appeal this summer, when it was granted an extension of time to file its petition."

Circuits disagree on whether optional rules can constitute conspiracies: the Ninth and Tenth treat them as non-conspiracies, while the First, Third, and Fifth and DOJ guidance view them as potentially conspiratorial. REX alleges NAR and members adopting the no-commingling rule engaged in concerted antitrust action. REX contends Zillow's compliance by redesigning its site participated in the alleged conspiracy. REX claims the no-commingling rule harmed competition, inflated agent commissions, and caused REX to go out of business. REX seeks vacatur and remand for reconsideration under the correct legal framework. Zillow changed listing displays in March 2021, producing a two-tab design to comply with MLS IDX requirements.

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