Editor’s note: The COURT REPORT is RISMedia’s weekly look at current and upcoming lawsuits, investigations and other legal developments around real estate.
It’s a new year, and that seems to have brought some changes to how court cases targeting organized real estate are proceeding. Specifically, some of the lawyers behind class-action commission litigation have sought to consolidate their claims, as the number of individual but mostly identical lawsuits has ballooned in the wake of the Burnett verdict.
Separately, a spat between Zillow and a handful of MLSs over showing service software could have broader implications on the industry.
Here is a recap of recent real estate news and developments from the courtroom:
Plaintiffs want Burnett judge to oversee multiple suits
Lawyers representing plaintiffs in two commission lawsuits filed a petition just before the new year 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 request, which has yet to be ruled on, would allow Judge Stephen R. Bough to preside over pre-trial proceedings, though the cases would still be tried separately in the districts where they originated. Defendants, which include the National Association of REALTORS® (NAR) and other big brokerages, have not yet said whether they will oppose the move.
Plaintiffs are arguing that trying the cases together would be more efficient, and that Bough has the proper experience and judicial insight to oversee the complicated, interrelated cases.
Defendants have previously argued that the Burnett case was tried incorrectly and promised to appeal the $1.8 billion judgment.
Batton 1 and 2 also move toward consolidation
Two suits filed by recent homebuyers (Burnett and most of the other commission suits were filed by sellers) are also likely to consolidate. After the Burnett ruling, attorneys behind the original Batton suit expanded their claims to include several other large brokerages.
Plaintiffs are seeking to combine the mostly identical cases under Judge Andrea R. Wood, who is overseeing another commission case, known as Moehrl—filed by sellers, and on track to go to trial this year with over $13 billion at stake.
According to a court filing last week, defendants in the larger Batton case—Compass, eXp, Redfin, Weichert, United Real Estate, Howard Hanna Real Estate Services and Douglas Elliman—are not opposing the consolidation. But NAR and the defendants in the smaller case have yet to weigh in.
Zillow cries foul in dispute over showing services
Real estate behemoth Zillow is suing three regional MLSs over an alleged effort to steer their members away from using the company’s ShowingTime software and toward a competing product (owned by the MLSs), which the company claims violated federal antitrust statutes.
The MLSs, Zillow claims, boycotted and used “monopoly power” to steer members away from its showing platform, in violation of federal antitrust laws.
According to the court filing, MLS members saw Zillow as a competing brokerage, and even declined an offer to integrate some ShowingTime services provided at no cost. The MLSs have not yet responded to the lawsuit in court.
RE/MAX and Anywhere await settlement approval
In at least two cases, plaintiffs are allowing RE/MAX and Anywhere, who previously settled two major commission lawsuits, to delay proceedings until those settlements receive final approval.
RE/MAX and Anywhere made the requests in the MLS PIN and March cases, which include broadly similar claims regarding conspiracy and inflated commissions as the Moehrl and Burnett cases which the two companies settled last fall, paying a combined $137 million and agreeing to change practices.
Notably, the plaintiffs in those cases are not opposing the delay, while still disputing the “impact” of the settlement agreements on other cases.
Whether or when judges in the disparate cases rule on RE/MAX and Anywhere’s potential protection from new suits is unclear, though the final approval of the settlement agreements is expected early this year.
Second settlement agreement in MLS PIN included no substantial changes
A small but notable commission case, MLS PIN seemed destined for a settlement until the Department of Justice (DOJ) intervened last fall, saying it had “concerns” and planned to get involved in the case.
An amended settlement agreement proposed in December did nothing to assuage those concerns, though at the time, it was not clear what changes had been made to the original document, which had already received preliminary approval from the court.
Last week, plaintiffs in the case said that while the parties had made “certain” changes requested by the DOJ, the amended agreement ended up being “identical” except for how the parties would seek to certify the class of recent sellers.
Plaintiffs are now requesting a delay on all further proceedings until the DOJ officially files its “statement of interest” in the case, sometime before February 15 of this year.