If there’s one thing Burnett vs. the National Association of REALTORS® (NAR) proved over and above the verdict, it’s that federal class action lawsuits move at a glacial pace, taking years and years to go from the original filing of a case to the appeals conclusion.
Indeed, it’s almost certain that the recently concluded Burnett case in Kansas City, Missouri, in which the defendants lost a $1.78 billion judgment, will take at least a year or two, or more, to wind through the appeals process. But the judge for the next major commission case—known as Moehrl—recently declined to push back the schedule, although with a trial likely later than originally estimated.
“I would…ask the parties to provide in (an upcoming) status report, availability for trial in the fourth quarter of 2024,” said Judge Andrea R. Wood, who is overseeing the case, at a recent hearing.
That status report has been scheduled for the end of January, with Wood saying she would like to set a specific date “as soon as it’s reasonable.”
As far as whether the Moehrl case will follow standards set by the Burnett case, Wood said broadly that she would not be “bound or influenced” by the recent decision, calling it “a different case with some different issues” (while acknowledging there is still overlap).
In the wake of the Burnett decision, copycat lawsuits making broadly the same allegations—that big real estate companies and NAR conspired to create and enforce rules that inflate commissions—have sprung up all over the country. The Moehrl case, though, was filed at roughly the same time as Burnett, and had been tentatively scheduled to go to trial in the first half of 2024.
Moehrl is also much larger in scope than Burnett, with potential damages pushing into the tens of billions.
While lawyers for Keller Williams and HomeServices of America—the two large corporate defendants in the suit—said they had no objection to the current schedule, Ethan Glass, representing NAR, requested more time based on post-trial deadlines in Burnett and an appeal of that case.
“There are legal questions that at least the National Association of REALTORS® believes that the court in Kansas City got wrong. And it seems a waste of resources to go through and have this court make legal determinations when there may be an appellate court…weighing in on some of the issues,” Glass said.
Without joining in the request for more time, Timothy Ray, representing Keller Williams, also argued that the Burnett case had been tried incorrectly, specifically highlighting the fact that certain state laws could not be used as evidence. He urged Wood to ignore any potential precedent from that case.
“So I appreciate that (the plaintiffs) would like to say that a lot of these issues were addressed in Burnett, but I want to disavow the court of that, and instruct the court not to look to Burnett,” Ray said. “Because we believe that there were serious errors made, and we would like for the Moehrl case to stand on its own.”
Wood was not convinced in regard to the timing, and while leaving open the possibility that she could move the case’s schedule on new information, seemed determined to move forward at the current pace.
“The parties have the benefit of experience in the other matter, direct experience and observation, in order to perhaps streamline the work that needs to be done here,” Wood said. “So unless and until I get a formal request to modify the schedule with the clearly-stated reasons for me to consider, I see no reason to revisit the schedule again, and I’m going to treat it as a firm schedule going forward.”
But she added that she would “tend to agree” with Ray that Moehrl would not have to rely on Burnett and “should stand on its own.”
She also urged both parties to keep her appraised of any potential settlement discussions. RE/MAX and Anywhere, who were both originally named in the suit, settled the Moehrl and Burnett cases shortly before the start of the Burnett trial. Lawyers for both companies still attended the hearing.
Jeffrey Levee, representing RE/MAX, said his “best guess” for when a hearing for final approval of those settlements would occur was May 2024. Preliminary approval was given late last month.
