The National Association of Realtors logo against a backdrop of a courthouse and a gavel.
Illustration by Lanette Behiry/Real Estate News

Appeal denied in major commissions lawsuit 

NAR was unsuccessful in its attempt to overturn the class action status of the $13 billion Moehrl suit.

Updated May 31, 2023
2 minutes

Key points:

  • A federal appeals court denied a request to overturn the class certification in the Moehrl v. the National Association of Realtors, et al., case.
  • NAR, along with several major real estate brokerage companies and MLSs, could be subject to significant damages if the plaintiffs prevail.

A lawsuit that could upend the way real estate commissions are paid will remain a class action, as a federal appeals court Wednesday denied a request by the National Association of Realtors and other named plaintiffs to overturn that certification.

"While it's not common for an appeal court to grant an early appeal on class certification, the National Association of Realtors is disappointed by the ruling," said NAR spokesman Wes Shaw.

"This decision is non-substantive and does not go to the merits of the case. We look forward to making our case at trial and are confident we will prevail because pro-competitive, pro-consumer local MLS broker marketplaces ensure equity, efficiency, transparency and market-driven pricing options for home buyers and sellers."

Wednesday, the appeals court denied without comment the plaintiffs' motion to decertify the $13 billion Moehrl vs. the National Association of Realtors, et al., case.

The plaintiffs argue that they paid the buyer's agent commissions unfairly, saying that buyers should pay for their own agents.

Because the case was certified as a class action, it will cover thousands of home sellers nationwide: Anyone who paid a commission to the named plaintiff brokerage companies — Anywhere, HomeServices of America, RE/MAX, and Keller Williams — between March 6, 2015, and December 31, 2020, as well as current and future sellers, stand to recoup some of those costs.

In addition to NAR and the named brokerage companies, 20 MLSs, including some of the country's largest (most notably Bright MLS and Stellar MLS), are identified as "co-conspirators."

Plaintiffs accuse the defendants of "conspiring to require home sellers to pay the broker representing the buyer of their homes, and to pay at an inflated amount, in violation of federal antitrust law," according to the co-lead counsel in the case.

A similar lawsuit, Burnett v. The National Association of Realtors (formerly Sitzer vs. NAR), was filed in 2019 and declared a class action in April 2022. However, Burnett is limited to Missouri, while Moehrl would affect commissions in many states. The defendant list is the same — NAR and the four largest real estate enterprises — and the suit also calls out several Missouri-based MLSs.

Correction: An earlier version of this article mischaracterized the role of MLSs. They are alleged "co-conspirators," not defendants.

Get the latest real estate news delivered to your inbox.