Commissions on trial and a courtroom scene.
Illustration by Lanette Behiry/Real Estate News

A day of heated cross-examinations in Sitzer/Burnett 

During a grinding morning of testimony, CEO Bob Goldberg repeatedly said NAR doesn't weigh in on commissions, while emotions ran high in the afternoon.

October 24, 2023
3 minutes

Key points:

  • Leaders from NAR insisted that the association isn't involved in commissions discussions or MLS policies.
  • In a tense cross-examination, the plaintiffs produced an email suggesting that MLSs would, in fact, be penalized by NAR if they didn't follow their rules.
  • HomeServices Founder Ron Peltier and CEO Gino Blefari testified in the afternoon, with Blefari's testimony to continue on Wednesday.

KANSAS CITY, Mo. — In tense, sometimes heated testimony, the defense and plaintiffs covered familiar ground as two NAR leaders took the stand on Tuesday, Oct. 24.

NAR CEO Bob Goldberg, while being cross-examined by the lead plaintiff attorney Michael Ketchmark, continued to deny that a conspiracy had taken place, while Ketchmark pushed him on the idea that the best practices rule related to commissions was part of the conspiracy itself.

In his testimony, Goldberg reiterated his statements from Monday that NAR has nothing to do with commissions and that they have always been negotiable. He added that the purpose of the best practices rule is to allow for negotiation to take place.

How much influence does NAR have over MLS policies?

Also taking the stand was Rodney Gansho, director of engagement at NAR. Gansho spoke at length about multiple listing services and how the MLS system is "the envy of the world." He also said that local associations — not NAR — control the MLSs, which allows for greater transparency and dissemination of information. He noted that the only repercussion for MLSs who didn't follow NAR's policies was the loss of their errors and omissions insurance coverage.

Ketchmark, the plaintiffs' attorney, pushed hard against this narrative, producing an email written by Gansho which suggested the consequences for MLSs who failed to adopt the association's policies were much more severe, including the loss of their charter or the removal of MLS officers from NAR.

A visibly upset Gansho countered that this was only theoretical. Those steps were never taken, he said, and it was the local association that would remove the officers, not NAR. The more punitive actions would apparently be taken after 60 days of not adopting the policy or recommendation, he added.

The sometimes repetitive back-and-forth between witnesses and attorneys appeared to be wearing on the eight-person jury, who looked fatigued after what has now been six days of arguments and testimony.

HomeServices of America weighs in

Toward the end of the day, HomeServices of America founder Ron Peltier took the stand, followed by Gino Blefari, the company's president and CEO. During cross-examination, Peltier was asked about comments made by Allan Dalton, a senior vice president for Berkshire Hathaway HomeServices. 

In 2019, Dalton went on the Tom Ferry Podcast Experience and suggested agents could use intimidation tactics in response to a client's request to lower their commission, which Ketchmark said cast the company in a bad light. Peltier replied that Dalton's statements did not reflect HomeService's agent training practices.

Blefari briefly provided initial testimony before the conclusion of the afternoon session. The remainder of his testimony and cross-examination is expected to take place when the court is back in session on Wednesday.

Want to know more? Follow all of our Sitzer/Burnett trial coverage here.

Get the latest real estate news delivered to your inbox.