Boies, who has represented Al Gore, Harvey Weinstein and failed medical startup Theranos, told Inman he took the case because it’s “important to enhancing competition in housing markets.”

Just days after rumors began swirling that REX Real Estate was on the verge of closing shop, the company has hired famed lawyer David Boies — known for representing figures such as Al Gore and Harvey Weinstein — to fight Zillow and the National Association of Realtors (NAR) in court.

At the same time, REX, a discount brokerage that has repeatedly clashed with other industry players, has also reportedly cut loose all of its agents — a move that appears to have effectively disbanded its brokerage.

David Boies. Credit: Getty Images and Jay Tanner

Boies’ hiring first came to light in a new court document filed last week, in which the lawyer asks a judge to let him join REX’s lawsuit against Zillow and NAR. The suit began in March 2021 when the discount brokerage sued the portal and trade organization over alleged antitrust violations. NAR later countersued, but the court tossed that suit last month.

Boies is among the highest profile attorneys in the U.S. He first became a household name representing Al Gore in the contested 2000 presidential election against George W. Bush. More recently, his clients included disgraced Hollywood mogul Harvey Weinstein and failed medical startup Theranos, where he also sat on the company’s board of directors. Other high-profile clients have included the NFL, the NBA, Dallas Cowboys owner Jerry Jones, and several people who accused Jeffery Epstein of sexual abuse.

In an email to Inman, Boies confirmed his involvement in the suit, saying “the case is important to enhancing competition in housing markets.”

“Effective competition in housing markets is critical to every homeowner and potential homeowner,” Boies continued.

Boies’ hiring — which was first reported by Real Trends — indicates REX’s case against Zillow and NAR will continue for the foreseeable future.

However, at the same time, the company’s brokerage appears to be closing down. According to a report from Real Trends, REX Chief Compliance Officer Steve Dawson emailed the company’s agents last Thursday and ordered them to immediately “transfer your license over to a new brokerage of your choice. This needs to be completed by day’s end tomorrow.”

The email also advised agents to let their new brokerages know that “you have current listings and current escrows that also need to be transferred and taken over by the new brokerage.” Dawson went on to suggest agents look for smaller brokerages if they were having trouble finding someone who would accept their current escrows, according to Real Trends.

Inman reached out to multiple sources at REX about the email and Boies’ involvement in the lawsuit but did not receive any responses.

Nevertheless, news that REX ordered its agents to scatter to new brokerages comes just days after an earlier report detailed a companywide call last Friday. The call reportedly “outlined the end of REX Homes.” According to The American Genius, which first reported the news, REX’s offices in Austin and The Woodlands in Texas shuttered on Tuesday.

When Inman reached out about that report, REX General Counsel Michael Toth replied that the company was “on path to disrupt the industry for consumers” until Zillow and the NAR stopped it.

“Unfortunately, as alleged in REX’s federal lawsuit, when Zillow and NAR colluded to protect their profits, REX’s innovative business model was sacrificed. The industry could not tolerate consumer choice,” Toth said. “As a result, we’ve had to make a lot of painful decisions.”

However, Toth did not confirm at the time that REX would be shutting down.

Launched in 2015, REX has a history of filing lawsuits against other industry players and has been described by outsiders as using antitrust litigation as part of its business strategy. But the suit Boies will now be working on has been especially noteworthy because it takes aim at two of the largest and most powerful players in real estate. The case specifically takes issue with a NAR rule that prompted Zillow to separate non-MLS listings from MLS listings on its website, including listings from REX.

REX also argued that under NAR — and enforced by multiple listing services — sellers must pay a buyer broker commission.

“REX brings this lawsuit to keep the digital hubs of the real estate economy open so that consumers have the benefit of innovation and cost savings that come from competition,” REX’s complaint read.

There are multiple lawsuits currently taking aim at the practice of sellers paying buyer brokers’ commissions.

In Toth’s email last week, he said that “our case against Zillow and NAR gets to the root causes of why consumers are being overcharged when they buy and sell homes. And we will continue to pursue our claims in federal court to prevail on the merits and collect the damages we’re owed.”

With apparently no agents but also a high-profile attorney involved, it’s unclear what form REX might take in the future, or what pivots, if any, it might have up its sleeve. However, with Boies on the team it seems likely that the antitrust case, at least, will only heat up.

Email Jim Dalrymple II

NAR | Real Trends | Zillow
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