Appeals court rejects new evidence in Sitzer/Burnett case 

The appeals began to flow in just a day after a judge approved the National Association of Realtors' landmark deal to settle the Sitzer/Burnett commissions lawsuit.

That was last November. Now, the U.S. Court of Appeals for the Eighth Circuit court has made it clear that its decisions will be based on evidence introduced at the industry-altering trial — no new additions.

NAR and brokerage defendants, as well as the plaintiffs, must remove material about other cases from their briefs and resubmit them by Sept. 15.

Reaction to the court's move: In a statement to Real Estate News, NAR called the court's request for updated briefs "procedural" and said "it does not undo the practice changes or any other part of the settlement as approved by the district court."

However, one of the people appealing the ruling, University of Buffalo law professor Tanya Monestier, called it a "critical" win. Monestier previously expressed concerns about the settlement in a lengthy objection, and she has spoken out about other industry practices. 

In May, she filed a brief arguing that the plaintiffs in Sitzer/Burnett did not have standing to pursue industry practice changes. Standing, meaning the legal right to sue over something you have been directly affected by, is a key issue in this case.

The home sellers who sued "did not allege a concrete, cognizable future harm" solved by the settlement, Monestier argued, so the lower court "approved a settlement it had no authority to approve."

In its statement, NAR added: "We believe that the district court made the right decision in granting final approval, and to support the industry and our members, NAR will continue to advocate for the settlement on appeal."

A closer look at what the appeals court did: The appeals court denied a request from the National Association of Realtors, Brown Harris Stevens and The Agency to add fresh material to the appellate record.

Specifically, they wanted to include filings from similar commissions cases. Monestier argued that NAR and the brokerages, like the Sitzer/Burnett plaintiffs, wanted to introduce the filings in order to belatedly prove standing.

Now what? The seller plaintiffs, led by Rhonda Burnett, and the original defendants in Sitzer/Burnett — NAR, HomeServices of America, Keller Williams, Anywhere and RE/MAX — as well as Brown Harris Stevens and The Agency, have been ordered to remove the disallowed content and resubmit their briefs by Sept. 15.

This ruling could push oral arguments to later this year or potentially early 2026.

Correction: This story has been updated to clarify that Monestier, not NAR, argued that the filings from other commission cases were intended to prove the plaintiffs' standing.