With the number of commission-focused lawsuits in the dozens—and growing every week—and with all of them making almost identical accusations and arguments, some sort of consolidation seemed inevitable as soon as the first copy-cat suit was filed.
Yesterday, the process of combining major commission suits took a big step forward as the National Association of REALTORS® (NAR) told a panel of judges the organization is in favor of this sort of consolidation—though with several important stipulations.
Responding to a previous petition filed by plaintiffs’ lawyers behind several of the largest commission cases (who have also asked for consolidation), NAR said they “support the centralization of related actions here.”
But NAR attorneys also pushed back on several other specifics of the arrangement, most notably, the judge who will be asked to preside over all the cases, and the region where proceedings will take place.
“While (plaintiffs) might prefer the Western District of Missouri for strategic reasons, the argument for centralization in that district is thin,” the filing claimed.
All the lawsuits in question rest on the same claims—that NAR, local real estate associations, MLSs and big brokerages conspired on rules that inflated commissions and harmed consumers, in violation of state and federal antitrust laws. A panel of federal judges, known as the Judicial Panel on Multidistrict Legislation, or MDL, will rule on any potential combining of cases.
And as the process moves forward. NAR is angling for home-field advantage, urging the courts to move all commission cases to the Northern District of Illinois, located in Chicago where NAR is headquartered. They also have a judge in mind—Andrea R. Wood, who is currently overseeing two major commission cases, including one in the later stages.
With both sides agreeing in principle that consolidation is the best path forward, it seems likely that at some point, the approximately 20 commission-related class-actions will merge (although separate cases would still have their own trials under the current proposals).
Under the plaintiffs’ proposal, only nine lawsuits would be consolidated—those most closely mirroring Burnett. NAR’s proposal would bring together 19.
Both sides are clearly hoping to scratch whatever advantage they can out of the process, though, with plaintiffs urging the court to assign the cases to Judge Stephen Bough, who oversaw the Burnett trial and a $1.8 billion judgment against the defendants, claiming that he has the best grasp of the underlying questions and legal frameworks.
NAR noted that Wood has as much or more experience as Bough with the issues at play in these lawsuits, as she has guided the Moehrl lawsuit since 2019, and is also presiding over a case called Batton (formerly known as Leeder), which involves buyers rather than sellers.
They also pointed out that plaintiffs excluded the two cases that Wood is overseeing from their consolidation plan, claiming this was a tacit acknowledgement that “it would make little sense” to remove these cases from her docket after years of pre-trial work.
“(Plaintiffs’) fragmented approach offers few if any benefits to judicial or party efficiency,” NAR lawyers wrote.
But NAR also offered an alternative to both Missouri and Chicago—namely, the District Court of East Texas, where one particular lawsuit named 47 different defendants. Because so many defendants are already going to be litigating here, NAR argued this would be “the most convenient district for the largest number of parties.”
Besides judge and district, NAR also disputed several other elements of the plaintiffs’ proposal for consolidation, including the exclusion of certain lawsuits from the consolidation plan
One class-action that plaintiffs left out, known as MLS PIN, should be joined, NAR contended, noting that there are still potentially significant pre-trial proceedings ahead for those parties. That case notably involves an MLS that is not affiliated with NAR, and also a settlement agreement that is currently on hold.
And the REALTOR® advocacy group went out of its way to argue that suits filed by buyers—which make up a minority of class-action litigation so far—should also be consolidated.
“This Panel routinely rejects attempts…to consolidate the claims of one type of plaintiff while excluding the claims of another type of purchaser,” NAR said.
Also notable, NAR included two lawsuits filed against the Real Estate Board of New York (REBNY), which disaffiliated from NAR decades ago, as part of their consolidation proposal. Those lawsuits make mostly the same allegations as the litigation directed at NAR and related parties, with parallel rules and consequences for consumers.
It was not clear when the MDL would rule on a potential consolidation, though other recent petitions on the court’s docket took two or three months.
