Commissions on trial next to a gavel and the scales of justice.
Illustration by Lanette Behiry/Real Estate News

The ‘day of accountability has arrived,’ say plaintiffs 

The plaintiffs’ attorney presented a dramatic closing argument, while the defense took a more methodical approach, saying the conspiracy claims did not hold up.

Updated October 31, 2023
4 minutes

Key points:

  • The plaintiffs are asking for damages of nearly $1.8 billion, along with significant changes to the buyer agent commission system.
  • The defense said the plaintiffs failed to prove a conspiracy was taking place and had cherry-picked evidence.
  • The jury met briefly at the end of the day and will begin deliberations Tuesday morning.

KANSAS CITY Mo. — Proclaiming that the "day of accountability has arrived in real estate," Michael Ketchmark, lead attorney for the plaintiffs, kicked off the closing argument phase of the Sitzer/Burnett trial Monday.

The defense countered that no actual evidence of a conspiracy was presented by the plaintiffs, and the data that they did present was cherry-picked. Defense attorneys added that their witnesses were also attacked on the stand with insinuations but no actual proof.

The day ended with a rebuttal from Ketchmark, and the case was then handed over to the jury with about 10 minutes left in the afternoon session. The jurors decided to call it a day and plan to start deliberating at 9 a.m. Central Time on Tuesday. 

They will have plenty of information to work through, as there were thousands of pieces of evidence presented and well over 50 hours of testimony given at trial.

Plaintiffs seeking nearly $1.8 billion in damages

Ketchmark offered up a dramatic performance as he closed out his case, telling the eight-person jury that the defense provided plenty of misdirection throughout the trial, but "ultimately made your job incredibly easy." He said the jury should conclude that the defense violated antitrust laws with their rules and practices surrounding buyer agent commissions.

The plaintiffs are also asking the jury to award damages of nearly $1.8 billion in the class action suit.

During deliberations, the jury will be asked to fill out a ballot containing five questions which go to the heart of the case: Did the plaintiffs "reasonably prove" their case that the defendants were part of a conspiracy to keep commission rates inflated? In a civil case like this, the burden of proof is lower than the "beyond a reasonable doubt" standard that's typical in a criminal trial.

However, the jury must be unanimous in its decision, according to the jury instructions.

Ketchmark went through the ballot addressing one question at a time, sometimes appearing to be on the verge of tears, and occasionally yelling while at other times whispering as he presented his final arguments. 

He said this was exactly the type of case the Sherman Act antitrust rules were meant to address: a system that allowed the defendants to do things they knew were wrong, but continued to do anyway.

When reviewing the question about damages, Ketchmark emphasized that it's ultimately up to the jury to decide the amount, referring to the monetary award as a "refund" to the home sellers of Missouri.

Ketchmark also spent a fair amount of time addressing what he called the defense's misdirection during the trial. He called out the testimony from former NAR president Sharon Millett, who said the arrival of internet technology made homebuying more difficult. Ketchmark said that was "nonsense," and that the defendants — the National Association of Realtors, HomeServices of America and Keller Williams — were desperate to hold onto a commission system that benefits them.

Defense sticks to original arguments

The defense was more methodical in its closing statements, most of the time showing less emotion than Ketchmark.

Ethan Glass, an attorney for NAR, argued that no document or testimony offering proof of a conspiracy was presented during the trial. He added that the evidence and testimony provided by the plaintiffs was taken out of context, while witnesses testifying on behalf of NAR were attacked as liars and crooks — something Ketchmark denied in his rebuttal.

"The plaintiffs utterly failed to prove a conspiracy," Glass said. 

Robert MacGill, lead attorney for HomeServices of America, said nearly half of buyer commission fee offers are actually below 3%, suggesting that no price fixing is happening. He also asked if all of the eligible class members — namely, home sellers in the state of Missouri — were actually injured, noting that everyone involved signed contracts and "got everything they bargained for."

MacGill also drove home the point that HomeServices itself did not control the day-to-day operations of its subsidiaries.

Timothy Ray, lead attorney for Keller Williams, made a similar argument, stating that KW doesn't control the operations of its franchises, and commissions are split between the agents and those franchises. 

He also argued that Gary Keller's speeches at Family Reunion events were not a violation of antitrust laws, since he was presenting national data and not having a conversation about what commission fees to charge.

It is now up to the eight members of the jury to decide if the plaintiffs met their burden of proof. 

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

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