Commissions on trial and a gavel and courthouse columns.
Illustration by Lanette Behiry/Real Estate News; Shutterstock

The jury has spoken — now what? 

The Sitzer/Burnett trial may be over, but a final judgment — which could impact both monetary damages and commissions rules — is yet to come.

November 1, 2023
3 minutes

The Sitzer/Burnett jury quickly agreed on a verdict Tuesday morning, but that's not the end of the story. There's more to come in the case, and plenty of changes ahead for commissions and the real estate industry. Here's what to expect in the next few days, and beyond:

Now it's the judge's turn: The jury delivered its verdict, awarding plaintiffs nearly $1.8 billion in damages. But sometime soon, likely in the next few days, the judge will enter a final judgment in the case that could shake things up even more. 

The judge is expected to issue some form of "injunctive relief" — a ruling that could mandate immediate changes to the real estate compensation system as we know it. And because Sitzer/Burnett is unfolding in a federal court, it could be a national ruling or one that is just focused on Missouri, where the trial took place.

Damages could change: Antitrust law allows for damages to be tripled, which is why the $5.36 billion number is being used. However, it is not a certainty that this will be the final amount. The Sitzer/Burnett judge has the discretion to lower the amount of damages awarded by the jury. Following the verdict, NAR filed a motion requesting this.

What about an appeal? NAR stands firm in its plans to appeal alongside other defendants Keller Williams and HomeServices of America. However, an appeal can't be filed until after the judge delivers his judgment.

Settlements still need to be approved: In September, Anywhere and RE/MAX reached settlement agreements covering the Sitzer/Burnett and Moehrl cases, and the plaintiffs in the Nosalek case recently agreed to settle with the two brokerage companies as well — but final approval of all the agreements is pending.

Why does the DOJ keep coming up? The Department of Justice (and for that matter, the Federal Trade Commission) have signaled their interest in real estate commissions cases. The DOJ raised "significant concerns" with the settlement agreement in the MLS PIN lawsuit, saying it's not enough to just allow $0 buyer-broker commissions, and succeeded in pushing the final approval hearing into next year. Another signal: A DOJ lawyer was spotted in the Sitzer/Burnett courtroom.

More lawsuits on the horizon: Michael Ketchmark, the attorney for the Sitzer/Burnett plaintiffs, had another commissions lawsuit ready to go after the verdict was read. The Gibson case — which you're sure to hear more about — joins Moehrl, which is due to hit a Chicago courtroom sometime in 2024, as one of several commissions cases that could further impact the industry. 

Meanwhile, the Real Estate Exchange (REX) is requesting a new trial after losing its case over how Zillow displayed its listings. The now-defunct discount brokerage is claiming that it was unfairly prohibited from presenting information about industry commissions to the jury, Reuters reported.

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

Get the latest real estate news delivered to your inbox.