NAR’s Latest Legal Victory: Supreme Court Declines to Hear Case on Repealed Optional ‘No Commingling’ Rule

Editor’s Note: This article first appeared in Realtor Magazine. Reprinted with permission from the National Association of Realtors.

WASHINGTON—The Supreme Court provided final resolution for 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 The optional rule, which was repealed in June, allowed MLSs to require that listings from non-MLS sources be displayed separately from MLS listings.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; and on Monday, the Supreme Court declined to take up Real Estate Exchange’s appeal, ending the legal battle.

“As we have said from day one, NAR’s optional no-commingling rule was not an antitrust violation,” an NAR spokesperson said following the Supreme Court’s decision. “Both the district court and the 9th Circuit Court of Appeals affirmed this, and we are pleased their rulings will stand. 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 While the optional rule is no longer in effect, NAR remains committed to protecting the benefits MLSs provide agents, consumers and the industry.”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, Association Legal Affairs, Charlie Lee explained at the time.