courtroom with scales of justice

Brokerages ask court to dismiss buy-side commissions case 

The five defendants in Batton 2 — Compass, eXp, Redfin, Weichert and United — filed a joint motion, arguing that the claims are untimely and lack merit.

June 25, 2024
2 minutes

While many brokerages have chosen to settle in the commission cases brought by sellers, some are taking a different approach to the buy-side lawsuits.

On June 21, all of the defendants in Batton 2 — Compass, eXp, Redfin, Weichert Realtors and United Real Estate — filed a joint motion to dismiss, laying out a range of arguments for the court.

Calling the lawsuit an attempt "to parrot the allegations they made in an amended complaint filed against completely different defendants" — a reference to Batton 1, which targeted NAR, Keller Williams, RE/MAX and Anywhere — the defendants in Batton 2 submitted a 53-page brief in support of their motion.

Making their case: In requesting a dismissal, the defendants made several key arguments:

  • The plaintiffs lack antitrust standing because the more directly injured parties — home sellers — are already seeking the same relief. 

  • The court lacks personal jurisdiction in the case.

  • The plaintiffs failed to show any evidence of a conspiracy or backroom deal to keep commissions high.

  • The plaintiffs' claims cannot be brought under certain state laws, such as the Illinois Antitrust Act, which bars indirect purchaser class actions.

The defendants argued that similar claims made by plaintiffs in Batton 1 were already struck down.

The defendants also noted that the complaint is based on NAR rules that have been in place since 1996: "Nothing plaintiffs say can change the fact that their claims are untimely," they wrote in the filing.

Background on the Batton cases: The plaintiffs in Batton 1 and Batton 2 make similar claims as the plaintiffs in the Sitzer/Burnett, Moehrl and various copycat cases, but they involve buyers rather than sellers. 

The two cases, which include the same plaintiffs but different defendants, continue to make their way through the courts, although both were paused for a time when a multidistrict panel was considering consolidation of all the commission cases.

HomeServices of America was dismissed from Batton 1 in February. Plaintiffs in that case are currently trying to appeal the settlements made by Anywhere, RE/MAX and Keller Williams in the sell-side cases. 

Howard Hanna Real Estate and Douglas Elliman were originally named as defendants in Batton 2 but later dismissed.

Both cases are being handled by U.S. District Court Judge Andrea Wood, and recent filings included a schedule showing a lengthy discovery process that won't be completed until May 2026.

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