On the DOJ Amicus Brief in REX v. Zillow

This is a far bigger deal than anyone realizes....

Recently, the Department of Justice filed an amicus brief with the Ninth Circuit Court of Appeals on the REX v. Zillow case.

I’ve read it and re-read it and looked up cases and such. And I think this is a bigger deal than any of us had thought.

I had kind of forgotten about this lawsuit because it ended in a gigantic defeat for REX. The trial court had ruled in favor of Zillow and NAR on a summary judgment motion back in August of 2023. I wrote about that here:

Quick Update: REX v. Zillow is No Harbinger

As a result, NAR was dismissed as a defendant in the case, and Zillow was left in only for some state law claims. I wrote then:

Just as in PLS case, it is possible that we might see intervention at the appellate stage (if there is an appeal) that changes the outcome. It feels less likely because the Non-Commingling Rule was and is an optional rule, but again, I think the DOJ would like to get NAR any way it can.

Well, guess what? REX appealed that to the Ninth Circuit and the DOJ just intervened again, filing an amicus brief recommending that the trial court’s judgment be reversed and the case sent back, putting NAR back into the case, and not letting Zillow off the hook either.

That’s bad enough for NAR and Zillow. But there’s an even more important (possible) element here that impacts every single broker (and maybe every single agent) looking to the future.

Now, a caveat. I did a fair amount of extra research on this because… I don’t love the legal conclusion I am forced to draw here. And since I am not an antitrust specialist, and the response from the defense (which would lay out the legal arguments) is not available, I thought I’d go digging. It was not particularly fruitful, though I will share what I did find. You’ll see below.

With that out of the way, we get into things now. Buckle in, grab a drink, and let’s do this.

As always, I am not your lawyer and nothing in this is legal advice. This is education and speculation, and you should consult your own attorney for actual legal advice and legal conclusions.