Keller Williams and HomeServices of America logos against a backdrop of a courthouse

NAR, HomeServices, KW ask for new trial in Sitzer/Burnett case 

The defendants seek to overturn the nearly $1.8 billion verdict, arguing in motions filed Jan. 8 that the evidence doesn’t meet the bar for antitrust damages.

Updated January 18, 2024
3 minutes

Defendants in the Sitzer/Burnett antitrust lawsuit have asked the judge for a new trial.

In documents filed in the U.S. District Court for the Western District of Missouri on Jan. 8 — the deadline for post-trial motions set by Judge Stephen Bough — the National Association of Realtors, HomeServices of America and Keller Williams renewed a motion for judgment and requested a new trial in the buyer-broker commissions case.

The defendants also asked the court to decertify the class action lawsuit, arguing that the evidence from the trial did not meet the standard for antitrust damages. 

The motions are an attempt to overturn an Oct. 31 verdict that awarded Missouri home sellers nearly $1.8 billion in damages, a figure that could be tripled because of its antitrust implications.

The details: NAR, HomeServices and Keller Williams cited several reasons for requesting a new trial, including their assertion that no evidence was presented that could have led to the verdict.

The defendants argued that mistakes made by the court, including letting the jury know that Anywhere and RE/MAX had already settled, "invited the jury to assume their culpability and, by extension, the culpability of the non-settling defendants," according to a motion filed by Keller Williams' attorneys.

The court should also order a new trial, the KW attorneys said, because it had "marred the jury's verdict" by excluding important evidence that would have made clear that "Missouri law expressly authorizes commission sharing between listing agents and buyer agents."

That verdict has unfairly cast doubt on buyer agent compensation practices, said Darryl Frost, a spokesman for Keller Williams.

"The court allowed the jury to believe that home sellers wouldn't pay a buyers' agent even one cent, failing to mention that this is the very practice allowed under Missouri statute. Because of the disturbing verdict, many plaintiffs' attorneys are filing baseless copycat suits. Evidence was presented at trial but not admitted — which misinformed the jury," Frost said.

NAR also called out "legal errors in the jury instructions" as well as the "plaintiffs' counsel's pervasive and prejudicial misconduct" in its motion.

In a separate filing requesting a new trial, HomeServices attorneys argued that the testimony of the plaintiffs' economic expert — Craig Schulman — should not have been admitted and that "the jury's clear reliance on Dr. Schulman's flawed expert opinion renders its admission prejudicial and entitles Defendants to a new trial."

In renewing the summary judgment motions, attorneys argued that there was no evidence presented at trial that a conspiracy took place, such as a meeting or discussion between the defendants about enforcing NAR's Cooperative Compensation Rule.

HomeServices attorneys also argued that the plaintiffs were not direct purchasers of buyer agent services and thus should not be entitled to recover antitrust damages.

What's next: Plaintiffs are scheduled to file responses to these motions later this month, with a final decision on post-trial motions not expected before the spring.

Meanwhile, a conference to approve the settlement the plaintiffs made with RE/MAX and Anywhere Real Estate is scheduled for May 9.

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