Sitzer/Burnett appeals case nears final judgment
As final briefs are filed, it’s up to the U.S. Court of Appeals to decide whether the arguments merit unwinding the case that shook the industry.
The appeals process for a key commissions case is moving toward its final stages as the judges decide whether to undo years of litigation — or keep a landmark settlement in place.
In recent weeks, four objectors to the deal reached in the Sitzer/Burnett case — Robert Friedman, Monty March, James Mullis and Tanya Monestier — have filed reply briefs with the U.S. Court of Appeals for the Eighth Circuit, and others are due later this month.
It's possible that an oral argument before a three-judge panel will follow, though the court may instead decide to rule based on the submitted briefs. Either way, a ruling could occur in early 2026.
How we got here: Approved in November 2024, the Sitzer/Burnett settlement accounts for the bulk of the $1 billion-plus in damages to be distributed to the class of home sellers across several related cases. Those appealing the case have presented a variety of arguments, including whether the seller class has standing to get a settlement approved in district court, whether the amount is fair and who should be included in the settlement.
A question of fairness — and procedure: One objector has been especially vocal throughout the case. Tanya Monestier, a law professor at the University at Buffalo School of Law and a member of the seller class, argued in her reply brief that the plaintiffs failed to meaningfully address her arguments: "Instead, they urge this Court to approve the settlement as fair, adequate and reasonable for 40 million home sellers largely on the strength of their assurances."
Monestier's brief noted that the settlement will amount to just $16 for the average class member. The plaintiffs have argued that the amount recovered through the settlement was the most the defendants could reasonably pay without starting bankruptcy proceedings.
Montestier also argued that the plaintiffs haven't shown they have standing to pursue industry practice changes through the lawsuit. The issue of standing, meaning the legal right to sue over something you have been directly affected by, was previously addressed by Montestier in May.
Her recent reply brief also noted that the plaintiffs wanted to introduce supplemental evidence to a case that she said already involved more than 5 million documents.
"If there were evidence of standing, surely Plaintiffs could point to it somewhere in this gargantuan pile of paper," Montestier wrote.
The plaintiffs have argued that, because the District Court had jurisdiction over the dispute, it had authority to approve the settlement without raising Article III standing concerns.
Other litigation muddying the water? Arguments against the settlement filed by Friedman and March have centered around the contention that the litigation they brought against the Real Estate Board of New York (REBNY) is an entirely separate antitrust conspiracy, and thus shouldn't be included in the settlement. The judge in Sitzer/Burnett disagreed, specifically including REBNY in the list of MLSs included in the deal.
Mullis, who is part of the Batton case involving homebuyers, argued that the settlement class was unfair because it included home sellers who also bought a home. That technicality would prevent some of the buyers in the Batton case from pursuing the settlement if they also sold a home.