What happens in Kansas City, stays in Kansas City.
Berkshire Hathaway Energy (the $20 billion-parent of HomeServices of America) and Tennessee-based independent brokerage Crye-Leike’s petitions to transfer commission lawsuits were denied, despite defendants’ argument that it would be more convenient for witnesses to travel there instead of Kansas City.
Judge Stephen Bough of the Western District of Missouri said, “the court holds that severing this case into multiple duplicative cases does not serve the interest of justice of judicial economy.”
Bough acknowledged that although both defendants would prefer to litigate where they are headquartered, neither Berkshire Hathaway Energy nor Crye-Leike cited any case laws that prohibit the court from considering the inconvenience on the plaintiffs’ side by litigating in two or more forums.
“Severing and transferring one or more defendant(s) would shift and multiply the inconvenience to plaintiffs, two of whom are in the Kansas City metro,” the filing reads. “Thus, the convenience of the parties weighs toward plaintiffs.”
Howard Hanna, previously one of the three defendants, reached a settlement deal in the case May 2. The brokerage was behind the recusal requests for Bough, which he ultimately refused despite acknowledging campaign contributions attorneys—on both sides of the case—had made to his wife.
Berkshire Hathaway Energy had also joined in those arguments. Bough has so far allowed the case against the Warren Buffett-owned holding company to proceed, based on the assertion that the company was involved in the alleged price fixing and antitrust violations of HomeServices.
Virtual depositions
In explaining his reason, Bough noted that the majority of the defendants’ witnesses are their employees, which a previous case found that “the inconvenience caused to party-employees is not of ‘paramount concern.’”
According to the filing, plaintiffs argued that the depositions could be conducted remotely, which the defendants did not contest.
For Berkshire Hathaway Energy, all but one of its potential party witnesses have to travel a maximum of three hours by car; the last witness lives in Oregon, and the travel time to either Iowa or Missouri would be comparable, states the filing. Its non-party witness would likely be based in Minnesota.
Crye-Leike, on the other hand, identified potential non-party witnesses generically, and, according to the filing, both the court and plaintiffs agree that the unnamed witnesses are “speculative and depositions could occur remotely.”
“Defendants have not met their burden to show that witness convenience weighs in favor of transfer,” the court states in the filing.
Why Kansas City?
Citing the precedent that a plaintiff’s choice of forum in class actions is held to less regard, Berkshire Hathaway Energy argued that the plaintiffs’ choice of forum should not be prioritized. Further, they accuse plaintiffs of allegedly engaging in “impermissible forum shopping” by filing in the same district as the Sitzer case. Crye-Leike argues that the plaintiffs’ choice of forum is not convenient and lacks a meaningful connection to the allegations, according to court documents.
The Gibson plaintiffs reject the forum shopping allegation and argue their choice of forum should be considered, since there is a connection between the named plaintiffs, the events giving rise to their claims and the forum.
The court found that the plaintiffs’ choice of forum is entitled to deference and that there is a connection, given that three out of the four named plaintiffs sold homes in the Western District of Missouri and two of them still live in the Kansas City metro, according to the filing.
