In the Gibson v. NAR commission lawsuit (the largest and first Burnett copycat) before Judge Stephen R. Bough in the Western District of Missouri, Berkshire Hathaway Energy Company (BHE)—parent company of HomeServices of America (HSA)—just had the court deny their request for summary judgment.
BHE first filed a motion for summary judgment on March 4, arguing the case against it should be dismissed now as a matter of law, contending that because the plaintiffs’ own theory treats BHE and HomeServices as a single enterprise under a Supreme Court doctrine, the prior settlement that released HomeServices from liability effectively released BHE as well.
The filing argues plaintiffs cannot use BHE’s oversight of HomeServices to establish liability while simultaneously claiming the settlement release—which plaintiffs themselves described as a nationwide release—does not extend to BHE.
According to the court documents filed today, the plaintiffs don’t dispute that “the coordinated activity of BHE and HSA constitutes a single enterprise,” but argue that (a previous Supreme Court case) “does not foreclose a theory that a parent and subsidiary independently could have formed a civil conspiracy with others.”
The court ultimately sided with the plaintiffs on that point, finding that the Supreme Court precedent cited by BHE does not apply as the company argued.
Bough wrote that while a parent company and its subsidiary can be considered a single enterprise in some antitrust contexts, that does not prevent them from participating in a broader conspiracy alongside other entities. In this case, the plaintiffs allege a “nationwide conspiracy to fix the prices of buyer-broker commissions,” extending beyond just BHE and HSA.
The Gibson plaintiffs—the same lawyers behind Burnett—added BHE in the months after they won a $1.8 billion verdict, in a trial overseen by Bough. BHE subsequently fought to have the lawsuit dropped on other mostly technical grounds, arguing that arbitration clauses in listing agreements shielded the company from liability, and also seeking to have the case transferred to another district.
The ruling marks another key development in the ongoing wave of commission litigation following the landmark Burnett verdict and subsequent settlements, even as the majority of those lawsuits are resolving. Just this week, eXp and Weichert saw settlements in commission cases finally approved in a Georgia copycat case.
