REX Appeals Latest Court Loss, Aims To Keep Fighting Zillow

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The company is appealing a recent ruling that rejected its request for a new trial. REX has been feuding with Zillow for years now.

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In the latest chapter in a long-running feud, now-defunct discount brokerage REX has filed a new motion that aims to keep its battle with Zillow alive a little longer.

REX — also known as Real Estate Exchange — filed the motion Monday. The motion is an appeal to a recent ruling against REX and is essentially pushing for the opportunity to hold a new trial in the company’s lawsuit against Zillow. The lawsuit began in 2021 and centered on the practice of keeping listings from MLS sources separate from those that don’t come from an MLS.

REX was a discount brokerage that tried to bypass the traditional multiple listing service system and market directly to consumers. The company argued in the suit that Zillow’s practice of keeping the listings separate hurt REX’s business.

The new motion is a response to a January order in which a judge rejected REX’s request for a new trial. REX had made the request in November after losing a jury trial in September. The jury in that trial ultimately concluded REX didn’t prove Zillow used false advertising as it separated non-MLS listings from their MLS counterparts, making them available on a different page of its site. The jury also said Zillow proved it was innocent of a second allegation of engaging in unfair or deceptive acts.

The jury verdict additionally came a few weeks after the court dismissed all antitrust allegations that were part of the lawsuit, which had originally targeted both Zillow and the National Association of Realtors.

The jury decision could have ended the case, and REX has long since ceased to operate as a brokerage. However, the firm instead opted to press on.

REX’s November request for a new trial argued that it was unfairly barred from presenting testimony about real estate commissions to jurors and that the court allowed Zillow to “improperly escape liability” against false advertising and consumer deception claims.

However, the judge rejected these arguments. In his January decision, Judge Thomas Zilly said that REX was “ably represented, both before and during trial, by multiple attorneys from well-regarded law firms.” The judge also said REX had “more than sufficient resources” to pursue the case, and that the company’s attorneys had opportunities to file motions, offer evidence and do other things to prove their points.

The result, the judge ruled, was that REX’s failure in the suit wasn’t the result of a “procedural flaw” or an “error on the part of the court” — and so it would not get a new trial.

The latest motion filed Monday asks the United States Court of Appeals for the Ninth Circuit to reverse that decision and let the case proceed. Only time will tell, though, if REX will be granted the ability to fight on.

Read REX’s latest motion here:

Email Jim Dalrymple II

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