Editor’s Note: This story was updated on Dec. 16 to include the Supreme Court’s denial of rehearing on Dec. 15.
The U.S. Supreme Court doubled down on its October decision not to hear a case brought against the National Association of REALTORS®, after the association successfully litigated the case in two lower courts.
The brokerage Real Estate Exchange, Inc. (REX) sued NAR and Zillow in March 2021, alleging NAR’s optional non-commingling rule (sometimes called the “no commingling” rule) violated federal antitrust laws. The optional rule, which was repealed in June, allowed MLSs to require that listings from non-MLS sources be displayed separately from MLS listings.
Previously, judges in the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court of the Western District of Washington at Seattle ruled in favor of NAR. In October, the Supreme Court declined to take up REX’s appeal, and on Monday, denied REX’s petition for a rehearing. The case is closed.
“As we have said from day one, NAR’s optional no-commingling rule was not an antitrust violation,” NAR General Counsel and Senior Vice President of Legal Jon Waclawski said following the Supreme Court’s decision. “Both the district court and the 9th Circuit Court of Appeals affirmed this, and the Supreme Court has denied certiorari [a review of the case]. Local MLSs play a key role in fostering transparent, competitive and fair housing markets by delivering consumers the most accurate and up-to-date information on home listings. While the optional rule is no longer in effect, NAR remains committed to protecting the benefits MLSs provide agents, consumers and the industry.”
Separate from legal proceedings, NAR’s Executive Committee voted to repeal the optional policy in June. The decision was informed by feedback from the MLS community about the rule’s declining usage and relevance in local marketplaces, NAR’s Associate General Counsel and Vice President of Association Legal Affairs Charlie Lee explained at the time.
