Commissions on trial with image of Charles Evans Whittaker U.S. Courthouse in Kansas City, Mo.
Illustration by Lanette Behiry/Real Estate News

Jury selected for landmark Sitzer/Burnett trial 

Lawyers jostled for position and weeded out ineligible jurors, including many who are members of the plaintiff class (Missouri home sellers).

October 16, 2023
3 minutes

Key points:

  • The jury pool of at least 80 is one of the largest ever convened in the district for a civil trial.
  • National coverage of the case — including a damning Wall Street Journal editorial published Monday morning — could prove challenging for the lawyers.
  • An attorney for the defendants emphasized that the burden of proof is on the plaintiffs.

KANSAS CITY, Mo. — A trial that could significantly alter agent compensation practices is officially underway in Kansas City, Missouri, as the judge and litigators completing the day-long process of selecting a panel of fair and impartial jurors.

On Monday, U.S. District Judge Stephen Bough for the Western District of Missouri called in dozens of potential jurors and allowed attorneys representing the plaintiff class and the defendants in the Sitzer/Burnett case to ask about their prejudices and decision-making process.

Potential jurors and attorneys filled into the small courtroom at the Charles E. Whittaker U.S. Courthouse. Bough said the jury pool of at least 80 is the largest one convened in the district for a case not involving a capital offense in recent memory. The pool quickly shrunk, however, as members of the class — Missouri home sellers who sold a house in 2014 and beyond — were dismissed straight away.

By the end of the day, nine people were selected: seven men and two women. Bough asked the assembled potential jurors to not consider any outside information about the case and to not discuss the facts of the case with anyone during the trial process.

This will be made complicated, Bough said, by the national attention the litigation will receive during the trial. The Wall Street Journal ran a fiery editorial related to the case on Monday morning which was discussed in court. It referred to Realtors as a "cartel" and to their commission practices as "standard antitrust violations." A lawyer for the defendants said the article made it appear as though the plaintiffs were already winning.

At the same time, lawyers representing the plaintiff class, which is claiming a national conspiracy to require home sellers to pay buyer-broker commissions at an inflated amount in violation of federal antitrust laws, laid out a roadmap of their case.  

Michael Ketchmark, a trial attorney with Leawood, Kansas, firm Ketchmark & McCreight PC representing the plaintiffs, made clear his ties to the local community and said he was representing more than 500,000 people in the Show-Me State and bordering communities. 

Ketchmark also asked potential jury members if they would be comfortable handling such a weighty decision, noting that a judgment covering years of real estate transactions could be worth billions of dollars. 

Some potential jurors grumbled about their own experiences with the homebuying or selling process and expressed reservations based on their familial relations in the industry. 

Timothy Ray, a partner at Chicago firm Holland & Knight LLP representing Keller Williams, asked jurors if they would be fair and consider only the facts presented in court. He asked if they would not immediately pass judgment simply because his client and the co-defendants are big companies. 

Ray made a point to potential jurors that the burden of proof to prove a conspiracy between the defendants lies entirely on the plaintiffs. He said the defense has no need to call a single witness to defend itself. Rather, the plaintiffs must back up their inflammatory claims with evidence in court.

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