Berkshire Hathaway Energy (BHE) filed a motion in the largest Burnett copycat case seeking arbitration based on what it is calling the judge’s “significant legal error” to overturn its previous ruling.
They don’t plan on waiting for his approval, though.
In the filing, BHE, a holding company for the real estate brokerage HomeServices of America, explicitly states it will immediately appeal Judge Stephen R. Bough’s ruling to the Eighth Circuit should he deny BHE’s motion to compel arbitration.
According to the court case document, filed Dec. 31, 2024, BHE stated that the Court’s order did not provide a ruling on the basis they filed for dismissal—“no claim has been or can properly be asserted against BHE without a plaintiff who can claim an injury by BHE.”
Further, the filing outlined how the Court considered only two out of the hundreds of arbitration agreements BHE provided and used agreements from states with different laws from those that governed the agreements in Sitzer.
“Respectfully, by placing the agreements referring to different state laws before the Court, BHE did not waive—and the Court erred in suggesting that BHE waived—‘any argument under any other state’s law,’” according to the filing. “Waiver is the intentional relinquishment of a right; by submitting these agreements BHE plainly did the opposite by specifically invoking coverage by provisions providing for arbitrability.”
Plaintiffs in the case—who are represented by the same lawyers who successfully brought the Burnett case and won a $1.8 billion verdict against the industry—added BHE as a defendant to their lawsuit, known as Gibson, in the the spring of last year, arguing that the holding company was complicit in alleged antitrust violations carried out by HomeServices.
In December, Bough allowed those claims to move forward, writing that BHE could not enforce arbitration agreements in listing contracts as a non-signatory to those contracts.
BHE adamantly disagreed with this ruling, further arguing that the arbitration agreements considered by the Court contained different language and scope that differed materially from those before the Court in Sitzer, according to BHE.
In the Sitzer case, according to the filing, the Court considered arbitration agreements that expressly applied to “the parties” in those agreements. Still, some of the agreements not considered by the Court contained language that did not restrict arbitration to “the parties,” but instead “(n)on-signatory parent or other affiliated companies,” for example.
Additionally, the Court’s Order “explicitly distanced BHE from HomeServices in a manner that requires dismissal.”
“More significantly, the Order found that ‘BHE does not have a sufficiently close relationship with Home Services’ to cover arbitrability,” according to the filing. “If, however, the Court has determined that BHE does not have a sufficiently close relationship…then there is no basis for claims against BHE to remain.”
The third argument in the filing focused on the agreements executed only after the Court’s ruling in Sitzer. The language used in those “New Agreements” made “the parties’ intention to arbitrate clear, because all signatories expressly agreed to arbitrate or mediate disputes arising from, or related to, the agreements.”
Additionally, BHE stated in the filing that the Court “erred as a matter of law in finding that BHE cannot enforce the New Agreements listing HomeServices as the ‘ultimate parent company’ of the relevant brokerages.” Under this, BHE is excluded as a party and “no plaintiff can proceed against BHE.”
BHE stated that the Court should grant them the motion to compel, citing that when there is “clear and unmistakable evidence the parties intended to commit questions of arbitrability to an arbitrator,” the question of “whether a particular arbitration provision may be used to compel arbitration between a signatory and a nonsignatory” is one for the arbitrator.
To read the full filing, click here.
