Key Takeaways
- The U.S. Supreme Court denied a petition for rehearing on a case brought against the National Association of REALTORS® (NAR) regarding its optional non-commingling rule.
- The rule, which was repealed in June, allowed MLSs to require that listings from non-MLS sources be displayed separately from MLS listings.
- The brokerage Real Estate Exchange, Inc. (REX) sued NAR and Zillow in March 2021, alleging the rule violated federal antitrust laws.
- The Supreme Court’s decision affirms the rulings of two lower courts, which found in favor of NAR.
- NAR remains committed to protecting the benefits of Multiple Listing Services (MLSs) for agents, consumers, and the industry.
Introduction to the Case
The U.S. Supreme Court has denied a petition for rehearing on a case brought against the National Association of REALTORS® (NAR) regarding its optional non-commingling rule. This decision comes after the Supreme Court’s initial refusal to hear the case in October. The brokerage Real Estate Exchange, Inc. (REX) sued NAR and Zillow in March 2021, alleging that the optional non-commingling rule, also known as the "no commingling" rule, violated federal antitrust laws. The rule allowed Multiple Listing Services (MLSs) to require that listings from non-MLS sources be displayed separately from MLS listings.
Background on the Non-Commingling Rule
The optional non-commingling rule was a policy that allowed MLSs to separate listings from non-MLS sources from those listed on the MLS. This rule was repealed in June, after NAR’s Executive Committee voted to remove the policy. The decision to repeal the rule was informed by feedback from the MLS community, which indicated that the rule was no longer relevant or widely used in local marketplaces. According to NAR’s Associate General Counsel and Vice President of Association Legal Affairs, Charlie Lee, the feedback from the MLS community played a significant role in the decision to repeal the rule.
The Lawsuit and Lower Court Rulings
REX sued NAR and Zillow in March 2021, alleging that the non-commingling rule violated federal antitrust laws. The case was heard in the U.S. District Court of the Western District of Washington at Seattle, which ruled in favor of NAR. The decision was later affirmed by the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court’s initial refusal to hear the case in October was followed by REX’s petition for a rehearing, which was denied on December 15. The denial of the petition for rehearing brings an end to the case, with the Supreme Court affirming the rulings of the lower courts.
NAR’s Response to the Supreme Court’s Decision
Following the Supreme Court’s decision, NAR General Counsel and Senior Vice President of Legal, Jon Waclawski, stated that the organization’s optional non-commingling rule was not an antitrust violation. Waclawski noted that both the district court and the 9th Circuit Court of Appeals had affirmed this, and the Supreme Court’s denial of certiorari (a review of the case) further supported NAR’s position. Waclawski also emphasized the importance of local MLSs in fostering transparent, competitive, and fair housing markets by providing consumers with accurate and up-to-date information on home listings.
Implications of the Supreme Court’s Decision
The Supreme Court’s decision has significant implications for the real estate industry, particularly with regards to the role of MLSs in providing accurate and up-to-date information to consumers. NAR remains committed to protecting the benefits of MLSs for agents, consumers, and the industry. The repeal of the optional non-commingling rule and the Supreme Court’s decision affirming the lower court rulings demonstrate NAR’s commitment to ensuring that MLSs continue to play a key role in fostering fair and competitive housing markets. The decision also highlights the importance of the real estate industry’s ability to self-regulate and adapt to changing market conditions, while also ensuring that consumers have access to accurate and reliable information about home listings.