On Monday, August 19, HomeServices of America and Douglas Elliman—the two brokerage defendants in the ongoing Lutz v. HomeServices of America, Inc. suit—filed a joint complaint to have the homebuyer commission lawsuit dismissed.
Settlement agreements for commission lawsuits have been reached by the National Association of REALTORS® (NAR), with the association’s agreed-upon rule changes going into effect on Aug. 17, and many other brokerage firms agreeing to a broad settlement with commission lawsuits brought by homesellers—not buyers, such as those in the Lutz suit.
Lutz was filed in Florida Southern District Court on April 29 against Berkshire Hathaway HomeServices Affiliates, LLC, HSF Affiliates, LLC and HomeServices of America, Inc. As with other class-action lawsuits against real estate businesses and associations, the complaint alleges that brokerages conspired to inflate commissions.
Douglas Elliman—named as a co-conspirator alongside other major brokerages such as Anywhere and RE/MAX in the initial complaint—was added to the suit as a defendant in an amended complaint filed on June 11.
The named plaintiff in the case, James Lutz, purchased a home in Florida in 2021. The dismissal petition centers on his role, claiming he does not have sufficient standing to sue or act as a class representative.
The complaint cites Judge Andrea Wood, overseeing the commission lawsuit Batton v. National Association of REALTORS® in the Northern District of Illinois, who has written that plaintiffs who filed identical complaints are not “efficient enforcers of antitrust laws.” Therefore, this suit—which files for injunctive relief under the Sherman Antitrust Act—must receive the same ruling.
“Not only is Plaintiff’s claimed injury indirect—as he acknowledges by not asserting a damages claim under the Sherman Act—but there are more directly injured plaintiffs (i.e., home sellers) pursuing the same injunctive relief that Plaintiff seeks here. Denying Plaintiff antitrust standing is thus ‘not likely to leave a significant antitrust violation undetected or unremedied,’” the dismissal complaint states.
Carol Lee O’Keefe is the lead attorney for the plaintiffs in both the Batton and Lutz cases. HomeServices of America was dismissed from Batton, the largest buyer suit, earlier this year.
The filing also claims that Lutz cannot claim “injury-in-fact” from the transaction because he has not alleged “lasting impact or future injury from the home purchase.” As NAR has changed its rules, the document says, any potential future injury from these rules to the plaintiff is not possible.
Since Lutz’s claim is limited to Florida, the dismissal petition argues that he cannot claim to be a class representative from other members of this class who are under different statewide jurisdictions. In turn, the defendants claim that Lutz’s claim does not pass muster under Florida law since he did not “confer direct benefit” on the defendant. For one, he had no dealings with Douglas Elliman. Second, as the filing attests, “Regarding HomeServices, he alleges that he purchased a home in Florida using a buyer broker affiliated with a HomeServices franchise, and that seller brokers (brokers representing sellers rather than buyers, like Plaintiff) pay buyer-broker commissions.”
A response from the plaintiffs has been requested by Sept. 3. As of this writing, the plaintiffs have not filed this response.
