National Association of Realtors logo and the scales of justice.
Illustration by Lanette Behiry/Real Estate News; Shutterstock

Court should consolidate all commissions cases, argues NAR 

The trade association favors a consolidated approach but wants all 19 cases included — and doesn’t think the trial should be held in Missouri.

Updated January 23, 2024
3 minutes

Key points:

  • The National Association of Realtors filed documents on Jan. 23 in support of consolidation.
  • They argued, however, that only including a subset of cases would not benefit the courts or the parties involved.
  • NAR also suggested that any consolidated case be moved to either Illinois or Texas, where cases involving multiple defendants have been filed.

The National Association of Realtors is signaling support for consolidating the multitude of buyer agent commission lawsuits — but it wants all 19 of the national cases to be included, not just the 10 currently under consideration.

The association is also seeking a different venue should the newly consolidated case move forward.

Consolidating a subset of cases 'offers few if any benefits,' says NAR

In documents filed Jan. 23 before the U.S. Judicial Panel on Multidistrict Litigation, NAR attorneys stated support for the idea of consolidation but expressed dissatisfaction with the original motion.

In the motion filed Dec. 27, plaintiff attorneys, including Sitzer/Burnett lead attorney Michael Ketchmark, requested the consolidated case be held in Missouri — in the same court where the Sitzer/Burnett plaintiffs were victorious and awarded $1.8 billion by the jury — and include 10 of the lawsuits filed after that verdict. Nine cases were listed originally, but the Latham case, filed Jan. 18 and encompassing much of northeastern California, was added to the group on Jan. 23.

NAR countered that the original proposal would "consolidate only a limited subset of the pending actions that involve common questions of fact," noting that there are 19 cases that challenge NAR rules related to buyer-broker commissions or similar rules adopted by Multiple Listing Services.

The fragmented approach by the plaintiffs "offers few if any benefits to judicial or party efficiency," according to the NAR attorneys.

NAR wants case moved to Illinois or Texas

Attorneys for NAR also challenged the location of the proposed consolidated case, suggesting that the Northern District of Illinois was more appropriate because there were already four cases in that state covering more of the questions to be resolved with these lawsuits. 

Those Illinois-based cases are:

  • Moehrl — originally filed in 2019 and certified as a class action in March 2023 — which was brought by home sellers and includes the same defendants as Sitzer/Burnett

  • The two Batton cases, filed by homebuyers and naming a total of 10 defendants (not including Anywhere and RE/MAX, which settled)

  • Tuccori, brought by a homebuyer and naming a single defendant, @properties

In a written statement to Real Estate News, NAR said that "centralizing all cases in the Northern District of Illinois will promote efficiency and consistency in addressing the industry-wide issues these cases present."

"While NAR continues to defend practices that benefit consumers and advance homeownership, our members are continuing to serve their clients as they navigate significant, complex, and personal transactions across the country," the association added.

NAR also said it would not oppose the consolidated trial being held in U.S. District Court in Eastern Texas, which is the area with the largest number of defendants. 

According to the association, of the 210 total defendants named in the major commissions lawsuits, 46 are in the two Texas cases, known as QJ Team and Martin.

The QJ Team suit was filed in mid-November and targets five Texas associations and more than 20 teams and brokerages. Martin came a month later and included an even longer list of defendants — more than 40 in total — with several entities named in both cases. In addition to the antitrust allegations at the core of the commissions lawsuits, both Texas cases also cited violations of the Texas Deceptive Trade Practices Act (DTPA).

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