In a recent hearing for one of the largest and most important pending commission cases, Judge Andrea R. Wood said she was almost certainly going to rule against defendants’ motion to throw out the case, and also agreed to consolidate the class-action suit with another, even larger case involving the same plaintiffs.
The two cases, both known as Batton, will seemingly now combine, with virtually every large brokerage as defendants, and plaintiffs attempting to certify a national class going all the way back to 1996.
“I would be prepared to put the cases on a similar timeline,” Wood explained during a telephone conference this afternoon, “even though they are separate—if the parties think that would make sense, given that the same plaintiffs are involved.”
Wood also said she expected to have her order and opinion on pending motions to dismiss the case by the end of the week, and hinted strongly that she would be allowing the plaintiffs to continue with their claims.
“The case will be proceeding forward, I expect,” Wood said.
The Batton case—previously known as Leeder—had been dismissed by Wood after a lead plaintiff was found not to have standing based on state laws, but was refiled in 2022. The second case was filed shortly after the Burnett verdict, and defendants in both cases have not opposed consolidating the two.
Very importantly, the plaintiffs in this case are recent homebuyers rather than sellers, who allege that the National Association of REALTORS® (NAR) and other big brokerages conspired to create rules that caused them to pay inflated costs, in violation of federal antitrust laws.
The first Batton case named the same defendants as Burnett: NAR, HomeServices, Anywhere, Keller Williams and RE/MAX. The second Batton case, which made identical claims, added Compass, eXp, Redfin, Weichert, United Real Estate, Howard Hanna Real Estate Services and Douglas Elliman.
Although Anywhere and RE/MAX have argued that they are protected from the many seller-side copycat lawsuits that have popped up since Burnett, it is much less clear whether the settlements they agreed to will apply to buyer-side suits like Batton.
All together, the two Batton suits could easily push damages into the hundreds of billions, if Wood agrees to certify a nationwide class of consumers.
Whether the cases will reach that point might take some time to determine. At the hearing, Wood granted defendants a significant time extension to reply to her as-yet unreleased ruling and opinion on their motion to dismiss the case. She also scheduled an in-person conference for the end of February for parties to agree on a more complete timeline around discovery and proceedings ahead of class certification.
Randall Ewing, a lawyer for the plaintiffs, said he did not oppose consolidating the cases necessarily, but worried that the brokerage defendants in the second Batton case might bring up “unique” issues that would delay discovery for “a substantial period of time.”
If the two cases are consolidated on the same timeline as the original, Batton could end up being the next major case to head to trial after Moehrl. Wood is also overseeing that case, which has already certified a class and could see a trial by the end of the year.
Moehrl was filed by recent homesellers, rather than buyers, and dwarfs Burnett in scope and potential damages.
At the conference today, Wood also noted that NAR attorney Ethan Glass had “flagged” a proceeding before a multi-district federal panel that could potentially consolidate dozens of commission class-actions.
Plaintiffs in separate class-action lawsuits requested all these cases be overseen by Judge Stephen Bough, the judge who oversaw Burnett, while NAR is requesting that Wood herself be the one to take over all the commission-focused lawsuits.
“We wanted to make sure you were aware of what NAR is saying…as it pertains to your cases,” Glass said.
Wood said that as far as further consolidation, she would cross that bridge when she came to it, admitting it was “always a possibility” that proceedings could further combine.
“My intent and expectation here is of course to just proceed with managing the cases that are in front of me,” Wood told Glass. “While we’re waiting to see if there’s going to be an order (from the multidistrict pane), everything will proceed accordingly.”
Buyers potentially suing Realtors for damages begs the question do Buyers expect their Agent to work for nothing?
Whether the Agents fee is paid for by the Seller through the Listing Agents fee or directly by the Buyer as a closing cost, it still has to be paid.
The mass ignorance from all of these plaintiffs is off the charts stunning!
I’d like to know if there is a judgement for millions or billions, who gets that money?
I have been a realtor for 43 years and everything was easier before the Antitrust case. In reality buyers were paying in the sale price of the property and the listing agent shares commission with the buyers agent. Buyers are not adapting well to paying a commision . I have lost sales over this. My sellers are now paying 1 or 2% or whatever % they agree to the buyer’s agent to make sales happen . Why would any agent show your listing with just the hope they will find a buyer that will sign to pay them . Commissions have always been negotiable. Those listing are selling that have some payment to the buyers agent. This is causing an overall slump in sales because most buyers do not want to pay. Why, because they have mortgage closing cost which are substantial and adding commision to that can cause them to be unable to obtain a mortgage. Are appraisers considering these things when they do the appraisal? They have to deal with this as well. It really hurts first time home buyers and our veterans who through their service of our country should have the benefit of a no money down purchase and paying commission puts a larger burden on them as well. I think it is hurting the public! Why don’t’ the judges and lawmaker realize this???
When I started in Real Estate in 1980 , contracts were one page or 2. Now over the years with all the disclosures we have 32 pages and sometimes more. Disclosures are great but realtors have always had rules of ethics and have given fair treatment to the public. The Florida Real Estate commission punishes realtors by suspension and revocation of the license to the agents who not follow the stringent rules that govern realtors. Why do they want to make it difficult for realtors to make a living???? Why do some realtors now have to take a second job to survive??? I think the pubic must understand the expense we incur to market their property. We do not get reimbursed unless the property sells so we work hard to sell and put out expenses out and if the property does not sell that is our loss of time, effort and income. I put a lot of question marks because I have many question that lawmakers should consider as they make it more difficult for us to make a living. We need to ban together and fight for our livelihood. I would like to hear comments on this from other realtors and lawmakers.
I appreciate your thorough input and experience.
I am a Real Estate Agent in NY, Long Island, and I got my Salesperson License in December of 2017. I have owned and operated my own Carpentry & Contracting business since 2007 and I still do both. The transition into Real Estate, being an Agent, was smooth and I was able to grasp what it took to be an Agent relatively quickly, because it wasn’t so overwhelming. It felt natural for me.
From Jan 2018 to December 2019 I had a total of 3 sales under my belt. I had to support a family of 4 so I couldn’t invest a majority of my time into becoming an Agent and when COVID kicked in I thought it was the worst thing to happen, like, I just started and now the industry is upside down….or so I thought. Needless to say over the last 4 years, while juggling 2 careers I amassed 33 sales and currently have 2 pending on the sell side. It was amazing and it really expedited my career. For 2 years straight I was rarely wearing the tool belt and my body thanked me. Although I was exhausted because I was up at 5:00 and asleep at midnight almost every day, but, it was exactly what I needed to jumpstart my “retirement” career. After all, I’m now 45 and there is only so much abuse my body can take.
Today, I have a good grasp of the market, have a good idea of what to expect and can offer Buyer’s and Seller’s very valuable information so that they can make an informed decision. Had it not been for the Pandemic buying spree, I don’t think I could say the same and I definitely know my knowledge and numbers wouldn’t be as good. My point is, it took 33+ transactions to get a grasp of things and to become experienced in buying and selling real estate, and I know that I still have much to learn. This industry is filled with new experiences and every transaction brings something different to the table, as I’m sure you agree. There are also a TON of connections that I have made that I can reference if a transaction has a bump in the road. Those connections are invaluable. I know who to ask and what to ask. All-in-all, it’s the years of experience and number of transactions that have given me the confidence to enter any transaction and have confidence that it will close. Of course, every transaction is not guaranteed to close but I know that, at the end of the day, I have done everything that I can to have the best odds at getting a transaction to the closing table.
Now that you know a little about me, let’s get into these lawsuits.
These lawsuits are RIDICULOUS and, in my opinion, the NAR and their legal defense fell asleep at the wheel AND the fact that big firms settled didn’t help at all. As a NAR member, I am VERY upset. Not only at their advocacy but their internal strife. It is embarrassing. With the guilty verdict I knew that every pissed off person that thinks Agents are just door openers would hop on the bandwagon and there would be Attorneys frothing at the mouth to fatten their pockets. The general public doesn’t respect the profession and it’s evidenced by many of the comments you see in forums. They have NO CLUE what agents, good agents, do and how valuable we are. Sure some deals are cake but there are many times that agents REALLY provide a valuable service and keep their clients out of hot water, and save them a boat load of time and money…or get them more money for their properties. I guarantee a majority of buyers would overpay or buy some sort of defect, and sellers wouldn’t get as much as they do for their properties. On their own, they would most likely find themselves in precarious positions much of the time.
Now that commissions are under fire, if they change, meaning, if cooperating brokers are not compensated by the Listing Broker, how many buyers are going to want to engage with a Buyer’s Agent? My guess is, not many and that really hurts the buyers in the long run. They think they will be saving money but how will they actually know that? How is a buyer going to make sure that they are getting Fair Market Value? Are they going to run comps? If so are they going to use ZIllow or another online AVM? Yeah….GOOD LUCK! Will they be able to spot a sellers concession or other factor that influences the price of real estate? Are they going to know the pitfalls that they should look out for? Are they going to be expected to negotiate with an experienced listing agent OR are they going to take the word of the listing agent that the property is priced correctly? Are they going to know fair housing laws? If they don’t they could end up in a lawsuit real quickly. Are they going to know who to call or who to speak with if a problem arises? There are so many factors at play when it comes to buying and selling real estate that it is ignorant to think that it is a simple task. From my limited time in the business, I have learned a lot and it has allowed me to truly advocate for and protect my buyers, get them out of stick situations, prevent them from buying a disaster, calm them down and get the deal done, without them having to break a sweat.
Also, if no compensation is offered for cooperating brokers, shouldn’t the price of real estate come down? YES, BUT do you think sellers are going to accept less than market value or what a similar house has sold for? Maybe, maybe not. I mean, they could but the Listing Agent would need to convince their seller that the commission might have been baked into the price…or is it? Nobody but the Attorneys and Listing Brokers on each deal really don’t know the total commission that paid, for the most part. Was it 4%, 5%, 6%…etc. That being said, it will take a LONG time before the market adjusts if compensation isn’t offered.
In closing, I would argue that most buyers NEED representation. Savvy buyers may not, but I would argue that most buyers are not savvy. How could they be, unless they have purchased multiple properties. Offering compensation to cooperating brokers is a practice that should remain, because the buyer is advocated for, more protected and represented. What will come of all this is unknown but if Listing Brokers are forced to no longer offer compensation to cooperating brokers and buyers decide to go at it on their own without the assistance of a professional, we’ll see more lawsuits, and heartache and pain for many buyers and sellers. It’s, no doubt, going to cause a lot of problems.
Wow almost my twin. Started in 1980. This is the biggest load of too much BS for NOTHING that Ive ever experienced. Its really a non issue. This is human greed trying to make massive money for nothing. Sandra really nailed it with her comments. Sigh. What a BS world this has become. Around the time Zillow and everyones cat and dog started to go into real estate, that we would end up with KIOSKS in McDonalds etc where we would push a few buttons and buy a home directly from sellers. Now I see a national company trying to cut out all local MLS systems by offering a low fee all/state/country type listing base. It took 30 years but what I predicted has always come true. I said in 1981 as a newbie that dual agency was a problem and would end or be greatly modified.
Bend over, my friends. Marvin Von Renchler
Lookd like Attorneys will take any case where they will benefit more than any of the complaints.
In their process they will destroy a very good system and replace it with a very bad one for the Consumer.
Looks like Attorneys will take any case where they will benefit more than any of the complaints.
In the process they will destroy a very good system and replace it with a very bad one for the Consumer.