Batton plaintiffs move to block NAR deal in commissions case 

The homebuyer plaintiffs in the Batton commissions lawsuit have asked the court to block a settlement reached by the National Association of Realtors in a related case. 

NAR's $52 million deal: On April 10, NAR announced that it had joined the Tuccori settlement via an opt-in provision allowing defendants facing similar litigation to settle in Tuccori, even if they were sued by different plaintiffs. The association agreed to pay $52.25 million to resolve all claims brought by homebuyers in a deal that also covered state and local Realtor associations, Realtor-owned and non-Realtor-owned MLSs, and some real estate brokerages.

Batton plaintiffs claim 'reverse auction': In a motion filed on April 28, the plaintiffs in the Batton case — which, unlike Tuccori, names NAR as a defendant — requested a preliminary injunction to prevent the settlement from moving forward. 

The plaintiffs filed a similar motion in February after Anywhere Real Estate — a defendant in Batton — also chose to settle in Tuccori. In their Feb. 24 filing, the Batton plaintiffs characterized the deal as an attempt to "end-run" litigation in the original case. After that motion was denied — and a judge granted preliminary approval to the Anywhere settlement — the Batton plaintiffs took their request to the appeals court where it awaits a ruling. 

"As predicted, the National Association of Realtors has now announced that it too opted-in to Tuccori, following Anywhere Real Estate, Inc.'s lead," the April 28 preliminary injunction motion states.

"As with Anywhere, the losers of this deal are the injured homebuyer class members whose claims have been sold out from under their feet for a fraction of their true value," the filing continues, adding that "NAR's settlement, like Anywhere's, is a prototypical reverse auction."

Settlement amount 'inadequate': The Batton plaintiffs argued that NAR's settlement in Tuccori, which is roughly 12% of the $418 million the association agreed to pay in Sitzer/Burnett, is significantly lower than damages paid in other "indirect purchaser" cases tied to a "direct purchaser" lawsuit.

In comparison, the plaintiffs noted, the $20 million "icebreaker" Keller Williams settlement in Batton amounted to 28.5% of the $70 million the brokerage company paid in Sitzer/Burnett.

"As a result of NAR's settlement, Plaintiffs and the homebuyer class will suffer the inadequacies of the NAR settlement and Tuccori counsel's representation, as well as pressure to engage in an ongoing race-to-the-bottom with Tuccori counsel," the filing stated.

Other opt-ins: In addition to NAR and Anywhere, United Real Estate and Compass have chosen to settle in Tuccori instead of Batton, according to court documents filed on April 27. Given their responses to the earlier deals, the Batton plaintiffs are likely to push back on those latest settlements as well.