Editor’s note: The COURT REPORT is RISMedia’s weekly look at current and upcoming lawsuits, investigations and other legal developments around real estate.
Two weeks into 2025, the legal calendar is already looking very full for many of real estate’s biggest players. Although the settlement agreement struck by the National Association of REALTORS® (NAR) may have helped put the bulk of the commission lawsuit saga in the rearview, other companies, lawsuits and investigations are already heating up this year. At least two brokerages are facing a significant challenge to their settlements—specifically, from a judge and a high-profile group of plaintiffs. And a Supreme Court ruling opens up the potential for the Department of Justice to pursue its inquiry into NAR unfettered, ending a four-year long legal fight over the foundation of that inquiry.
Here is the latest from the courtroom and cases affecting real estate:
Berkshire Hathaway Energy seeks expedited review of Burnett judge’s order
The holding company that owns HomeServices of America recently saw Judge Stephen R. Bough deny the company’s petition to throw out the case against it, as homeseller plaintiffs still seeking to hold Berkshire Hathaway Energy (BHE) liable for alleged wrongdoing committed by its brokerage subsidiary.
Lawyers representing BHE quickly informed the judge that they would appeal and ask the Eighth Circuit to overrule Bough’s order, claiming that the “order involves several important controlling questions of law as to which there is substantial ground for difference of opinion.”
Specifically, BHE is challenging jurisdictional and procedural aspects of the case, focused on whether Bough’s court is the right venue to bring BHE. BHE has also indicated it will continue to challenge whether arbitration agreements in listing agreements should exclude potential class members from suing.
One of the main points of contention is how much control BHE has over HomeServices, with BHE pointing out that question has not yet even been argued in the case. BHE is also requesting a pause in the case while the Eighth Circuit reviews the appeal.
Supreme Court ends NAR’s legal fight to block DOJ
After almost four years over back-and-forth, NAR will have to face a DOJ inquiry—at least for now.
NAR filed a writ of certiorari appeal back in October, requesting for the Supreme Court to block the DOJ’s antitrust investigation into the organization based “on issues of critical legal and economic significance.” The Supreme Court declined to hear the case without comment on Jan. 13.
In the brief filed with the Supreme Court, DOJ lawyers stated, “The court of appeals in this case determined that the government had made no commitment to refrain from reopening an antitrust investigation that the government had closed. That decision is correct, and it does not conflict with any decision of this Court or another court of appeals.”
NAR previously agreed to respond to civil subpoenas related to the Clear Cooperation policy—a key target in the DOJ investigation—within 30 days of the ruling, though it is unclear how the transition to the new Trump administration may affect that agreement or deadline.
eXp, Weichert face skeptical judge in “reverse auction” controversy
A $34 million settlement struck by mega-brokerage eXp and a separate $8.5 million deal agreed to by Weichet have been thrown into significant doubt after Judge Stephen R. Bough, who oversaw the Burnett case, expressed significant reservations about the process of the negotiations, ordering both brokerages to turn over documents and communications for his review.
The controversy is mainly over process, with plaintiffs in one case claiming the brokerages engaged in a “reverse auction” to find the lowest bidder for a favorable settlement.
“I know what the normal process is,” Bough told eXp’s lawyer, James Morsch, according to a court transcript acquired by RISMedia. “I think we can all agree that it’s not normal for a party to conduct two mediations without telling somebody else that that’s what’s going on.”
Bough would eventually uphold an order requiring the brokerages to provide him with communications and documents relevant to the settlement negotiations, which he implied he would likely share with plaintiffs in one of the lawsuits later on.
Defendants in buyer-side case decry attempt to put lawsuit “back to square one”
NAR and big brokerages defending the largest buyer-side case (known as Batton) are seeking to prevent plaintiffs from significantly expanding their lawsuit—adding almost 20 new state-level claims and two dozen new class representatives—saying the move will upend a previously agreed-upon schedule and force defendants into even more costly and time-consuming legal work in the long-running lawsuit.
In a joint filing on January 6, lawyers for Anywhere, RE/MAX, Keller Williams and the National Association of REALTORS® (NAR) urged the judge overseeing the case, LaShonda Hunt, to deny plaintiffs from amending their lawsuit, calling the move “untimely.”
“The Court previously relied on Plaintiffs’ representations and should continue to hold them to those and reject their unjustifiably belated attempt…to greatly expand the scope of the case and take it back to square one,” defendants wrote Monday in a joint filing.
Plaintiffs in Batton have argued this late-stage move, which was made as the parties were already deep in the discovery process, was justified due to separate rulings in the seller-side commission cases, in which another judge granted defendants some immunity from claims made by people who both bought and sold a home during the relevant time period. They have appealed those rulings to the Eight Circuit, arguing buyer claims were improperly included in the seller settlements.
The judge in the case had not ruled on the motions at press time.
RealPage and other landlords hit with more price fixing allegations
Last week, the Department of Justice (DOJ) filed an amended complaint in its civil antitrust lawsuit against real estate software company RealPage, adding six apartment landlords as defendants and two more state Attorneys General as co-plaintiffs, as well as revealing an agreement with another defendant who has agreed to cooperate in the investigation.
The amended complaint specifically calls out several landlords—Greystar Real Estate Partners, Blackstone’s LivCor, Camden Property Trust, Cushman & Wakefield, Pinnacle Property Management Services, Willow Bridge Property Company and Cortland Management—for “participat(ing) in an unlawful scheme to decrease competition among landlords in apartment pricing, harming millions of American renters.”
The 115-page lawsuit makes hundreds of other specific allegations, including that RealPage’s software pushed landlords to artificially inflate rents even in down markets (despite confusion or protestation from some clients), and that some landlords and RealPage acknowledged internally that the certain practices could constitute price fixing.
In a statement, Greystar expressed that it is “disappointed that the DOJ added us and other operators to their lawsuit against RealPage.”
The DOJ also added to the amended complaint the intention to drop the claims against Cortland if the court approves a deal struck with the company, as the landlord has consented to cooperating in the case and changing practices
A Cortland spokesperson stated that the company was pleased to announce this development, adding that “(w)e believe we were only able to achieve this result because Cortland has invested years and significant internal resources into developing a proprietary revenue management software tool that does not rely on data from external, non-public sources.”
