REX - Real Estate Exchange Inc v. Zillow Inc
2:21-cv-00312
| W.D. Wash. | Mar 3, 2025Background
- Real Estate Exchange (REX) brought antitrust and deceptive practices claims against the National Association of Realtors (NAR) and Zillow Group, Inc. (Zillow).
- REX alleged that NAR’s optional "no-commingling" rule and Zillow’s compliance with that rule constituted an illegal agreement under Section 1 of the Sherman Act and a parallel Washington law.
- Zillow changed its website to separate MLS and non-MLS listings, placing REX’s listings on a non-default tab, which REX argued was anti-competitive.
- The district court granted summary judgment for NAR and Zillow, finding no actionable agreement and denied REX’s motion for a new trial on its deceptive practices claim.
- The Ninth Circuit reviewed the case and affirmed the district court's rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of antitrust agreement | NAR and Zillow conspired via the no-commingling rule | No concerted action; Zillow independently adopted display changes | No evidence of agreement; summary judgment for defendants |
| Conspiracy between Zillow and individual MLSs | Zillow conspired with non-party MLSs excluding NAR | No such claim clearly raised in district court | Not considered on appeal due to forfeiture |
| Jury instruction on reasonable business practice (deceptive act claim) | Instruction was unwarranted and misleading | Sufficient evidence and correct statement of law; instruction based on statute/pattern | Instruction was proper and supported by evidence |
| Requirement to weigh public interest before jury instruction | Jury needed instruction that public interest outweighed business justification | Reasonableness defense appropriately given if factual disputes exist | Objection not preserved; no plain error in instruction |
Key Cases Cited
- Fisher v. City of Berkeley, 475 U.S. 260 (essential element of §1 Sherman Act is agreement among parties)
- Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183 (concerted action requires joining separate decisionmakers for antitrust liability)
- Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (conscious commitment to a common scheme needed for antitrust agreement)
- Toscano v. Pro. Golfers Ass’n, 258 F.3d 978 (acceptance of independently set rules does not establish antitrust conspiracy)
- Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148 (no summary judgment defeat without direct or circumstantial evidence of concerted action)
- Travis v. Wash. Horse Breeders Ass’n, Inc., 759 P.2d 418 (upholds reasonable business practice defense instruction if supported by evidence)