Yet another extension has been granted in the Batton case.
Naming the following defendants—The National Association of Realtors® (NAR), REMAX, Anywhere Real Estate and Keller Williams—the homebuyer commission lawsuit has been granted an extension of September 22 for the plaintiffs to file their class certification motion. The extension has been granted for the plaintiffs to obtain the necessary data through discovery.
“The extension the plaintiffs are requesting is only for the…class certification deadline,” says the plaintiffs attorney Randall P. Ewing. “We don’t need to extend the fact discovery deadline, because we’ve already obtained the vast majority of fact discovery that we need. We just had these lingering issues with a few MLSs.”
Called a “long-running case” by both defendants who opposed the extension (which does not include Keller Williams, added plaintiff’s counsel) and Federal Judge LaShonda Hunt, who is overseeing the lawsuit, the case was filed in 2021, but discovery only began in May 2024. Hunt has not yet set a trial date, but previous court filings indicated a trial for the case is unlikely before late 2026.
Hunt expressed concerns over this being a “moving target,” citing the multiple extended deadlines already.
Plaintiffs in the case have made largely the same allegations as in Burnett and the seller lawsuits, but with the premise that alleged commission-fixing and conspiracy harmed homebuyers. Their lawsuit is also largely based on a patchwork of state laws due to how “indirect purchasers” are treated under federal antitrust statute.
In a filing before the hearing, lawyers for the plaintiffs claim that they only discovered during the lawsuit that many of the defendants don’t gather or store the kind of data—on home prices, commissions and home characteristics—that they need for expert testimony. Seeking that information from MLSs and portals has been complicated, they claimed, and specifically cited multiple MLSs that provided incomplete or unwieldy datasets.
In one instance, New Mexico-based Southwest Multiple Listing Service (SWMLS) deleted all commission information “while this lawsuit was pending,” the plaintiffs claimed, forcing the attorneys and the MLS to work with a vendor “in order to restore the necessary commission information,” although seemingly more issues remain even with that MLS.
The counsel noted that the experts have shifted their strategy, narrowing their approach for class certification in order to meet the deadline. At the moment, Ewing said that there is one MLS that they still don’t have the data for.
“I’m very hopeful that we can get this data from this other named plaintiff and get it in there in time…if we don’t, then we’ll move forward with this, but based on the data we do have now, we’ll be prepared to file on September 22—one way or another,” said Ewing.
The main change since May, Ewing said, was that they were expecting to get data from StellarMLS and SWMLS in time.
“Those assurances were made by third parties. Various problems popped up—more so with SWMLS—but Stellar, which is a pretty important MLS for us, took about six weeks later than they initially told us it was going to take them in order to provide their data,” he said. “And then SWMLS…they’re having concerns about whether they can disclose the data. They’re working through now, whether if NAR were to make a request, if that would let them do what they need to do.”
Currently, added Ewing, SWMLS is trying to schedule an expedited board meeting in the next week or so to get the authority to provide that data.
Hunt made it clear that she does not appreciate these moving target deadlines, particularly at the “eleventh hour.”
“What I don’t want is to constantly set deadlines—and this is a firm deadline—and then two to three weeks before, I’m getting a motion that says ‘We’re really not quite ready,’” said Hunt. “What I would have liked to know, well in advance of today, was that there were issues with these third-party subpoenas, because then I would have at least would have had some inkling that maybe the schedule needs to change, because there’s…data that your experts need for class certification purposes that you won’t be able to provide to the court.”
Despite her reservations, Hunt ultimately sided with the plaintiffs because the defendants, while objecting to the delay, agreed to a final deadline.
“I was prepared to deny the motion for lack of good cause here, because the defendant—although, I will say, they are just being flexible as well—but this is the final extension.”
