With uncertainty around the election and the National Association of REALTORS®’ (NAR) settlement already changing the industry, real estate continues to navigate a treacherous path through legal threats. This week, though, several large brokerages won a little more certainty as far as their immunity from legal threats as a federal judge approved their agreements with class-action seller plaintiffs. In other lawsuits, the news was less clear, with NAR responding to an antitrust lawsuit filed by a pocket-listing startup, and an MLS firing back at brokers claiming the settlement devalued REALTOR® membership.
Here is the latest from court cases affecting real estate:
NAR files litany of denial in TAN antitrust case
A listing service that sued NAR back in 2020 got what was essentially a blanket pushback from NAR after filing its fourth amended complaint in the lawsuit last week.
The company, known as Top Agent Network (TAN), previously agreed to drop a local REALTOR® board from the lawsuit as long as NAR agreed that it would not challenge jurisdiction or “subject matter” purview of the court in the case. TAN subsequently filed an amended lawsuit, continuing to argue that NAR used the Clear Cooperation policy to drive listing service competitors out of business.
In its response, filed on October 31, NAR used the word “denies” 204 separate times, simply disputing all the factual and conclusory allegations contained in the updated lawsuit. NAR had previously put forward more comprehensive legal arguments in response to previous versions of the lawsuit.
While NAR also asked the judge to dismiss the lawsuit, it is currently on track for a November 2025 trial.
MLSs, REALTOR® boards fire back in membership lawsuit
Back in August, three real estate practitioners in Michigan sued NAR, their local REALTOR® boards and an MLS over the requirement that they join NAR to access the listing services, claiming that requirement violated antitrust laws.
In that lawsuit, the two brokers and one agent—seeking class-action status—claimed that the NAR settlement devalued their membership, as compensation was no longer “guaranteed” after policy changes.
Defendants in the case jointly filed their first response last Friday, characterizing the lawsuit as vague, “amorphous” and deeply inadequate from a legal perspective.
“Plaintiffs…file this purported class action lawsuit alleging that Defendants acted anticompetitively, but only loosely and vaguely connect such allegations to the requirements for participation in (the MLS) that they take issue with,” defendants wrote.
Among other things, the defendants say the lawsuit does not even contain enough facts to qualify as an antitrust lawsuit and that the plaintiffs failed to even name the specific element of antitrust law that was being violated. They also wrote that the three real estate professionals never specify exactly how the NAR settlement is connected to their lawsuit, and never define a “relevant market” for the alleged violations.
“Plaintiffs’ allegations are so vague that they fail to even meet the minimal ‘notice pleading’ standard. Even on careful dissection, Defendants cannot identify what cognizable theories of harm Plaintiffs intend to pursue,” wrote the defendants.
“Notice pleading” describes a lower standard for legal claims that do not require as much detail as other standards.
The requirement that agents join a REALTOR® board in order to access the MLS has a long and tortured history of legal challenges going back to the 1970s. Currently, the legality of that stipulation depends on jurisdiction, with various federal courts having issued conflicting rulings over the last half-century, allowing some states to fully restrict access to the MLS, while others must allow non-NAR members to use those systems.
Nine brokerages get final approval for seller settlements
A federal judge last week gave a final stamp of approval to settlement agreements struck by nine large brokerages, confirming immunity from seller-filed commission lawsuits despite objections from some other plaintiffs.
Judge Stephen R. Bough of the Western District of Missouri oversaw a final “fairness hearing” for the agreements struck by Compass, The Real Brokerage, Realty ONE Group, At World Properties (the parent company of @properties Christie’s International Real Estate), Douglas Elliman, Redfin, Engel & Völkers, United Real Estate and HomeSmart.
At the hearing, Bough heard objections from copycat case plaintiffs, as well as buyer-side case lawyers, who both sought to limit or prevent the final approval. For the most part, Bough was curt, limiting objectors to “two or three minutes” each, and quickly approving the agreements without commentary at the hearing.
In an order filed today, however, he provided extensive legal reasoning for his decision, focusing particularly on the buyer-side objectors, who already appealed a ruling by Bough that granted some immunity from buyer lawsuits to companies that struck settlements with seller plaintiffs.
“Comparing the complaints in the Batton cases with Plaintiffs’ complaint here shows that the buyer claims arise from the same factual predicate as the seller claims,” Bough wrote. “All such claims arise from the same common nucleus of operative fact, and any class member with both seller and buyer claims would “ordinarily be expected to try them all in one judicial proceeding.”
Bough also awarded the “customary” one-third attorney’s fee from the $110.6 million paid out so far in the Burnett copycat case.
