Lawyers representing plaintiffs in two commission lawsuits are petitioning to have nine of the largest class-action lawsuits consolidated in a single district to be overseen by the same judge who presided over the Burnett case.
The petition, filed just before the new year, asks the United States Judicial Panel on Multidistrict Litigation to centralize the scattered but largely similar class-action lawsuits into one proceeding, presided over by Judge Stephen R. Bough in the Western District of Missouri.
Bough recently oversaw the Burnett case, in which plaintiffs successfully argued that the National Association of REALTORS® (NAR) and big brokerages conspired to inflate commissions and levied a $1.8 billion judgment against them.
If the motion is granted, the cases would still be tried separately—assuming they make it to trial—but all pre-trial discovery and proceedings would take place jointly before Bough. The plaintiffs are also requesting that any new commission cases be automatically consolidated as well.
It was not immediately clear if NAR or the other defendants would oppose the consolidation of the cases, or seek a different district or judge. NAR recently sought a total pause in at least one of the cases as the appeal in Burnett plays out.
A spokesperson for HomeServices, which is a defendant in several of the named cases, said the company had “anticipated” that plaintiffs would make this move, and did not immediately oppose the petition.
“(W)e are currently evaluating the substance of the motion and the best manner for HomeServices to continue to protect those we represent and defend our position in the appropriate legal forums,” the spokesperson told RISMedia.
The petition was made by lawyers who represent plaintiffs in the Burnett, Moehrl and Gibson cases. Moehrl is currently the closest to trial, and would not be consolidated under the petition.
“(T)hese cases are all at an early stage of litigation and will involve common discovery,” wrote the plaintiffs’ lawyers. “Accordingly, centralizing these and future similar cases before a single judge will promote the just and efficient conduct of these actions, prevent inconsistent pretrial rulings and duplicative discovery, and conserve judicial and party resources.”
While the petition is largely focused on the efficiencies that would be created by consolidating the many class-action cases, the choice of Bough as the presiding judge is telling.
Bough notably applied a narrower analysis to the antitrust issues in the Burnett case, and the defendants in the case have argued that this was erroneous as they have mapped out their appeal.
The plaintiffs highlighted the fact that Bough already oversaw a very similar lawsuit from beginning to end, and is still in the process of approving settlements by two former defendants in the Burnett and Moehrl cases. Some of the lawsuits that would be consolidated name those two companies—RE/MAX and Anywhere—and the plaintiffs argue Bough is best positioned to rule on whether the settlement agreements protect them from these additional lawsuits.
Consolidation would also include some cases that focus on non-NAR affiliated entities, including one against the Real Estate Board of New York, which disaffiliated from NAR decades ago. But the plaintiffs argue that these are still appropriate to consolidate, as they all “discuss the essential role NAR has played in the conspiracy.”
Here are the lawsuits that would be consolidated under the petition:
-Grace v. National Association of Realtors et al (Imported)
-1925 Hooper LLC et al v. The National Association of Realtors et al
-Gibson et al v. National Association of Realtors et al
-Umpa v. National Association of Realtors et al
-March v. Real Estate Board of New York et al
-SPRING WAY CENTER, LLC et al v. WEST PENN MULTI-LIST, INC. et al
-Burton v. National Association of REALTORs et al
-QJ Team, LLC, et al., v. Texas Association of Realtors, Inc., et al.
-Martin, et al., v. Texas Association of Realtors, Inc., et al.
Editor’s note: This story was updated at 3:54 p.m. eastern time with comments from a HomeServices spokesperson.
