It is indicative of just how different the legal landscape is post-Burnett verdict that two new commission lawsuits were filed, and we can say it was a relatively quiet week in the courtroom. But looking ahead, this coming week is shaping up to offer some potentially huge moments, with major hearings scheduled for at least two high-profile cases, and big deadlines looming for others.
We are also moving closer to a potentially damning decision by an appeals court in the long-running saga of the Department of Justice’s (DOJ) investigation into the National Association of REALTORS® (NAR), as oral arguments in that case happened just under two months ago. In other recent cases, that court has issued its decisions between two and four months after oral arguments.
Here is what you might have missed, and what to watch for in court news.
@properties, Nevada associations targeted in new litigation
Two new lawsuits, offering very little new in terms of factual assertions or legal strategy, were filed in Illinois and Nevada.
One is notable as the second commission lawsuit to target only a single brokerage, naming Chicago-based @properties and including only transactions that involved that company’s agents. Another suit filed in South Carolina last year is using the same strategy, naming Keller Williams as the only defendant.
This suit, named after its lead plaintiff, Tuccori, is also part of a smaller subset of commission lawsuits filed by buyers rather than sellers.
The second suit, filed in Nevada, is somewhat notable in that it does not name any brokerages as defendants, instead going after state and local REALTOR® associations, and MLSs.
Both of these suits otherwise mirror allegations made in Burnett, and the dozens of copycat class-actions filed after the Burnett plaintiffs won a $1.8 billion judgment in October—that is, that brokerages, MLSs and REALTOR® associations illegally conspired to create rules that inflate commissions.
NextHome CEO lays out “settlement path” for the industry
In a Q&A with RISMedia, James Dwiggins, the outspoken executive of California-based brokerage NextHome, called for the industry to accept changes and negotiate settlements across the board, rather than continue to fight the cascade of lawsuits.
“I don’t think there’s a scenario where an appeal will actually benefit any part of the industry,” he told RISMedia Senior Editor Michael Catarevas.
Dwiggins pointed out that even beyond the appeal, there is the dormant (for now) DOJ investigation and potential interventions from other federal authorities, which could continue despite even a successful appeal.
Plaintiffs in MLS PIN suit fire back at HomeServices
Responding to a motion to throw out the case, plaintiffs in the smaller but very important MLS PIN lawsuit disputed arguments that HomeServices previously made, claiming that the company is not part of any alleged conspiracy or wrongdoing regarding commissions.
The filing specifically cites training materials and other statements made by HomeServices executives that were highlighted during the Burnett trial, mostly centering on specific commission rates. In particular, the MLS PIN plaintiffs singled out an appearance by then-BHHS SVP Allan Dalton on a podcast in which he detailed a vulgar script used to refuse any request to lower his commission rate.
The judge in that case has not ruled on the motion. A settlement in the case is also delayed pending a planned intervention by the DOJ.
High-stakes hearings in Batton, PLS cases this week
Judge Andrea R. Wood, who is also overseeing the Moehrl case that will most likely go to trial this year, will preside over an important hearing tomorrow in a separate case filed by buyers.
While it is not entirely clear at this point what the status hearing will cover, the case has several motions pending, including a potential consolidation with a sister case that names several more defendants.
Another, older case focused on MLS rules will also get an update this week, when a judge in California will bring the parties together for a status update on Friday. This case, which involves a pocket listing startup suing NAR and big MLSs for alleged antitrust behavior, transcends many of the accusations made in Burnett, and could have more complex and wider-reaching implications for the industry.
This lawsuit was initially dismissed, but then revived on appeal. It is also unclear what topics will be covered, with a trial date already set for early 2025.
Defendants scheduled to respond in two more cases
In two other major cases, defendants are required to make their first official responses this week. In Gibson—the suit filed by the Burnett plaintiffs’ lawyers minutes after that verdict came down in their favor—defendants are supposed to answer the initial complaint by Thursday.
In another national suit, Batton v. Compass (sometimes known as Batton 2), big real estate brokerages are also supposed to file their response to accusations made by plaintiffs late last year. This case seems likely to merge with the other Batton, as defendants and plaintiffs both requested that move earlier this month.
