Four retired federal judges are formally protesting the procedure by which the National Association of Realtors® (NAR) and other big brokerages, including Anywhere, settled the buyer commission cases, saying that the practice will encourage “forum-shopping” by class-action defendants.
In a 22-page letter, known as an amicus curiae brief, Diane Wood, David Coar, G. Patrick Murphy and Nancy Gertner, who collectively claims almost seven decades of experience overseeing federal lawsuits, urged an appellate court to reverse a lower court decision and potentially upend the settlements.
“The challenged settlement process substituted private settlement design for the federal courts’ ordinary procedures,” the judges wrote. “The federal courts’ ordinary coordination mechanisms contain safeguards against this type of forum- and adversary-shopping.”
The objection stems from two parallel buyer lawsuits—one filed all the way back in 2021 (known as Batton), which was in the later stages, and another post-Burnett copycat (known as Tucorri). The Tucorri plaintiffs created an opt-in settlement procedure earlier this year, and defendants in Batton—including NAR—quickly jumped to take advantage of that, avoiding further litigation in Batton.
An NAR spokesperson told RISMedia in a statement that the organization “stands by its proposed settlement, the process of which was approved by the District Court and included negotiations mediated by a retired Northern District of Illinois Chief Judge.”
“The settlement seeks to resolve buyer-side commission litigation claims while offering meaningful protections across the industry. It provides a broad release for Realtor® members, Realtor® associations, MLSs, and those brokerages that meet the settlement’s eligibility requirements,” the statement continued. “NAR continues to believe the settlement is fair, reasonable, and in the best interests of the class, and we will continue to defend it through the legal process.”
The Batton plaintiffs vehemently objected, but were overruled both by the judge overseeing their case and the judge overseeing Tuccori—who said they could show up and object to the settlements as part of the normal judicial process. They subsequently appealed to the Seventh Circuit Court of Appeals, who the amicus curiae brief is addressed to.
The retired judges argued that this is not enough, and since the issue strikes at the fairness of the process, rather than the settlement, the Batton plaintiffs should be allowed to intervene in the Tuccori case and directly present their objections as parties.
“The district court treated his structural challenge as ordinary,” they wrote. “But an objection at the final approval hearing is not well-suited to testing whether the settlement forum itself was chosen to avoid adverse rulings, whether the deal reflects reverse-auction dynamics, or whether the opt-in settlement process undermines the coordination tools federal courts use to manage overlapping litigation.”
A potential intervention could threaten NAR’s $52 million deal that it characterized as the end of its part in the commission lawsuit saga—although the appellate court has no obligation to consider the retired judges’ brief. Currently, a final approval hearing for the Tucorri opt-in deals is scheduled for early November.
