In a new filing yesterday, plaintiffs and defendants in the looming mega-buyer commission lawsuits previewed some of the disputes and potential paths forward—including damages, settlement disputes and ongoing appeals—that could put the industry back in the throes of legal uncertainty, even as seller-filed litigation has largely been resolved by settlements.
The buyer lawsuits, mostly filed by the same group of attorneys and focusing on the same alleged conspiracy and price-fixing scheme as seller lawsuits, continue to represent a major threat to the industry, previously seeking to certify a class going all the way back to 1996, though the original litigation has also experienced a somewhat shaky history over the past three years.
Earlier this month, Judge Andrea R. Wood, who had overseen the loosely consolidated cases now known as Batton in the Northern District of Illinois, recused herself, and plaintiffs and defendants were ordered to provide an overview and update to the new judge assigned to the case, Lashonda Hunt.
Much of that eight-page filing (submitted late yesterday) is simply a rehash of the case’s history—homebuyers sued the National Association of REALTORS® (NAR) and big brokerages back in 2021 with largely the same allegations as the seller suits, claims which were dismissed and then revived with new plaintiffs and a new legal foundation. But also included were several small but potentially important new insights into the case, including the estimate of damages and how the seller lawsuits affect the case.
Maybe most notably, the filing states that “settlement discussion between plaintiffs and one defendant have occurred,” without specifying which defendant or providing any other details. Neither side is currently requesting a settlement conference, the filing says.
The defendants in the case are Keller Williams, Anywhere Real Estate and RE/MAX. Several other companies have been named as defendants in the follow-up lawsuit filed after the Burnett verdict, and at least two other companies—HomeServices of America and Howard Hanna—were subsequently sued with identical claims in different districts after they successfully argued the original court did not have jurisdiction over them.
A similar filing in the nearly identical case (also known as Batton) that was launched after the Burnett verdict, and names Redfin, eXp, Weichert, United Real Estate and Compass states that settlement discussions “between Plaintiffs and one Defendant are ongoing.”
Although nearly all of the entities named in these suits have struck settlement agreements in the seller-filed Burnett case (or one of its copycats), those deals do not automatically provide immunity from buyer-filed lawsuits—though the latest filing also reveals more about how defendants and plaintiffs are battling over that immunity.
A settlement in the Batton cases would be potentially groundbreaking, providing a roadmap to resolving the specific threat of these larger, advanced cases and likely ending the handful of buyer-filed copycats that have cropped up since the Burnett verdict.
There are still many other procedural hurdles and ongoing work being done on the Batton cases, however. Plaintiffs, the filing noted, have requested the case be partially paused as four of the named homebuyers are also recent homesellers, and would be excluded from participation in the Batton suit based on a different judge’s interpretation of the seller settlements. Lawyers representing the Batton plaintiffs back in May unsuccessfully objected to what they described as an underhanded move by defendants to sneak in partial immunity to buyer lawsuits in the seller cases.
But Judge Stephen R. Bough ruled that the seller agreements included people who had also bought a house, removing a large swath of class members from the buyer suits. The Batton plaintiffs quickly appealed that ruling, and yesterday also filed their first arguments as to why Bough’s ruling should be overturned to the Eighth Circuit—though that court rejected the filing based on technical deficiencies, including citing “multiple documents that do not appear to be a part of the record.”
Plaintiffs have five days to correct those errors and resubmit, according to a filing by the clerk of the Eighth Circuit.
Defendants, for their part, said they believe that “a large portion of the putative class released all potential claims through the nationwide settlements” in the seller cases, previewing what will almost certainly be an important factor in the case, with questions over exactly how many buyers who sold their home can be excluded based on Bough.
In the Batton filings, plaintiffs also previewed an upcoming filing meant to counter the defendants’ arguments regarding those seller settlements as well objections that the court does not have jurisdiction, saying that more plaintiffs will likely be added to the lawsuit and that an amended complaint is forthcoming.
And finally, the filing briefly discussed potential damages, with defendants saying they believed there is no basis to award any sort of damages as they continue to deny any of the underlying allegations. Plaintiffs estimated damages vaguely as “exceed(ing) $1 billion,” while acknowledging the case still required “extensive expert discovery and testimony” to calculate that number.
Previous back-of-the-napkins calculations based on the damage formula used in the Burnett case put potential damages much higher—in the tens or even hundreds of billions for a nationwide class, although that was before Bough’s immunity ruling, as well as Wood dismissing a handful of state claims from the suit.
A teleconference in the Batton cases is currently scheduled for Oct. 8.
This is a developing story. Stay turned to RISMedia for updates.
