Class Certification in Limbo for Buyer Case, With 79% of Proposed Class Invalidated by Burnett Order

Defendants in the largest homebuying commission case have filed a motion to strike or delay the plaintiffs’ class certification motion, arguing that a binding federal injunction from the Burnett case invalidates roughly 79% of the proposed class—buyers who also sold homes during a particular time period. 

The defendants, Anywhere, REMAX and Keller Williams, previously settled antitrust claims in the Burnett case; those settlements include broad releases covering home sellers. 

The court order granting final approval included an injunction barring all settlement class members from “filing, commencing, prosecuting, intervening in or pursuing…claims arising from or relating to transactions where settlement class members either sold or purchased a home on any multiple listing services (MLS) nationwide.”

The plaintiffs in the Batton case are attempting to certify a class that includes many people who are also class members in Burnett and are bound by the above injunction. According to Anywhere, the overlap affects approximately 79% or the proposed class.

In recent court filings, Anywhere presented the court with three options:

• Striking plaintiffs’ current motion for class certification, but allowing them to refile with a proposed class, and supporting analysis that would not violate Burnett’s final approval orders
• Temporarily staying the class certification proceedings until resolution of the plaintiffs’ appeal of the Burnett ruling (claiming this is likely to happen early in 2026).
• Continuing forward with scheduled oppositions to plaintiffs’ current motion, with the understanding that the proposed class cannot be certified consistent with the Burnett orders

“Anywhere seeks the court’s guidance on which path the court prefers,” the filing reads. “Under any circumstance, Anywhere respectfully submits that defendants should not be required to address substantively a narrowed class comprising buyers-only unless and until Plaintiffs present a specific methodology for identifying that class and assessing antitrust injury and impact as to that class, none of which their current motion does.”

The current briefing schedule gives defendants an opposition deadline for Dec. 23, but both parties have agreed to extend the deadline to Jan. 5, 2026. 

The plaintiffs did explicitly acknowledge the issue of the Burnett injunction, with one of their expert witnesses noting that she was explicitly asked by attorneys to calculate the percentage of class members who would still be eligible if every buyer who also sold a home during the class period were excluded.

But those calculations were non-specific, making broad estimates based on averages for how long buyers stay in homes, and the proportion of first-time buyers.

In an Oct. 22 court filing, Anywhere argues that defendants should not be required to oppose a narrower class of buyers-only, because plaintiffs have offered no analysis to support such a class. 

“It is plaintiffs’ burden to provide and support a methodology to identify non-released class members. Their current motion does not even attempt to do so,” the filing reads. “Defendants should not be required to oppose this methodology for identifying class members before plaintiffs have even met their burden by proposing such a method.”

Judge LaShonda Hunt, who is overseeing the case, wrote in a brief order that she had “taken under advisement” arguments made by both parties, and scheduled a hearing to discuss these issues (and others in the case) on Nov. 14.