courtroom with scales of justice

Arguments against consolidation dominate hearing 

Judges heard from both defendants and plaintiffs on Thursday who spoke about the “burdensome” nature of consolidation and the local nature of the cases.

March 28, 2024
4 minutes

Key points:

  • A six-member panel of judges listened to arguments about whether the remaining buyer agent commission cases should be combined into one big lawsuit.
  • Many of the attorneys argued against consolidation, pointing to differences in local rules and markets.
  • The judges seemed most interested in “common questions of fact.”

CHARLESTON, S.C. — Attorneys from across the country descended on the J. Waties Waring Judicial Center on Thursday, with most arguing against consolidation of the remaining buyer agent commission cases.

The U.S. Judicial Panel on Multidistrict Litigation listened to arguments about whether to consolidate many — or all — of the active class action lawsuits brought by home sellers. The judges may also consider adding in cases filed by homebuyers, like the Batton cases in Illinois.

While the courtroom and overflow area were packed, the hearing itself was conducted in an orderly and relatively quick manner, taking less than an hour. With one of the seven assigned judges absent, the six remaining judges listened to arguments that were similar to the written statements submitted by defendants in the weeks and months leading up to the hearing.

The questions from the judges tended to be specific to the cases under consideration and "common questions of fact," with some discussion about the Moehrl case, which is scheduled to start in January. Also central to the discussion was whether it was feasible to combine cases with unique local characteristics into one large case.

While the main argument against consolidation was that it would be "inefficient and unduly burdensome," others spoke about the local nature of many of these cases, noting that the housing market in a metro like Manhattan is vastly different than markets in Texas or South Carolina — all regions that have been subject to copycat lawsuits.

Absent from the courtroom was the National Association of Realtors, which agreed to a settlement on March 15. NAR had been a key figure in the buyer agent commission lawsuits and previously stated its support for consolidation, if all cases were included. 

Several defendants — and plaintiffs — say no to consolidation

Compass, which has also agreed to a settlement, did have an attorney present and spoke against consolidation. While settling the cases brought by home sellers, Compass is still involved in an Illinois case brought by buyers, known as Batton 2.

Jill Manning, who represents the plaintiffs suing MLSs and associations in the San Francisco Bay Area, told the panel that they did not support consolidation. Manning noted that the MLS defendant in their case, BAREIS, is not affiliated with NAR and has a different set of rules, making the case unique.

Attorneys in the Nosalek case in Massachusetts also argued against the proposal, noting that they were already close to a settlement agreement with MLS PIN, one of the defendants in the case.

Several attorneys spoke on behalf of the defendants in the Texas cases, with one noting that they were at different stages of discovery and they had issues beyond the common questions of fact. 

While they did not argue in support of consolidation, some offered up a concession: If the cases are consolidated, the newly merged case should be held in Texas, where a large number of the involved parties in the copycat cases reside.

After the hearing, the plaintiffs in the Texas cases — QJ Team and Martin — filed a document withdrawing their opposition to consolidation. The document did not provide an explanation on why the plaintiffs changed their minds.

Robert MacGill, a key attorney in the Sitzer/Burnett trial representing HomeServices of America, opposed consolidation and cited the "breathtaking" changes in recent days, including NAR's settlement, a potential trial date for the Moehrl case and movement in Sitzer/Burnett as important context for the panel to consider.

The judges did not provide a specific timeline for a ruling, but given that many cases are on hold while others are moving forward, they are expected to reach a decision quickly. 

And that decision will be a key turning point for the real estate brokerages and associations that have not yet settled.

John McDermott contributed to this reporting.

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