In the largest and oldest commission-focused case filed by homebuyers (known as Batton), Judge LaShonda Hunt mostly sided with defendants in a dispute over new claims and new named plaintiffs, characterizing the proposed amendment as burdensome and unnecessary.
At a hearing today in the Northern District of Illinois, Hunt eventually directed defendants—consisting of the National Association of REALTORS® (NAR), Anywhere, RE/MAX and Keller WIlliams—to confer with plaintiffs’ lawyers and try to agree on adding some number of new plaintiffs who could be added as class representatives, with the partial immunity granted by a judge in the seller class-action settlements appearing to be the main issue at hand.
“The claims, I’m not willing to consider that—again, I think that expands the scope of this case at too late of a point in time,” Hunt said. “I just don’t think that makes sense in a 2021 case.”
With most of the seller-filed commission lawsuits resolving, buyer cases like Batton have moved forward, with a handful naming mostly big brokerages around the country. These lawsuits still have the potential to add significant damages to the over $1 billion already paid in settlements by real estate entities.
The case is still tentatively aiming for a trial date in late 2026 or 2027.
Defendants had argued that allowing plaintiffs to make new amendments to their lawsuit would reset the case and require substantial new filings, arguments and rulings, and claimed that plaintiffs had failed to properly alert Hunt (or the judge who previously oversaw the case, Andrea Wood) regarding their intention to modify the lawsuit. Altogether, the plaintiffs had asked to add 20 new claims and 24 new plaintiffs.
Hunt agreed, characterizing the attempt as “tinkering” and saying the plaintiffs missed their chance to make changes. Plaintiffs, she said, were seemingly trying to “shore up” their claims after Judge Stephen R. Bough, who is overseeing the Burnett case and other class-action seller suits, granted NAR and big brokerages immunity from claims by sellers who also bought homes.
The Batton plaintiffs appealed that ruling, and the Eighth Circuit is currently in the process of considering those arguments.
Adding new named plaintiffs is also about ensuring representation from the many states where the Batton plaintiffs are bringing claims. Randall Ewing, a lawyer representing the Batton plaintiffs, told Hunt that his “primary concern” was that they had “enough plaintiffs for the various states.”
Defendants seemed at least somewhat open to discussing adding new plaintiffs, with Stacey Mahoney, a lawyer representing RE/MAX, saying there were “fewer” issues with having new buyers added to the suit. Mahoney also pointed out that the Eighth Circuit has finished briefing the appeal for buyer immunity for RE/MAX, Keller Williams and Anywhere, but has not ruled, while the appeal of the NAR buyer immunity is somewhat behind in terms of schedule.
Hunt asked the parties to come back in two weeks to report on whether they were able to agree on new plaintiffs. She also asked them to report on any settlement discussions.
