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In a major defeat to the National Association of REALTORS® (NAR), Keller Williams, RE/MAX, Anywhere (formerly Realogy) and Home Services of America and its subsidiaries BHH Affiliates and HSF Affiliates as defendants the Judge Stephen R. Bough of the US District Court Western Missouri denied motions for summary judgement filed by the defendants in the Sitzer/Burnett class action commission lawsuit. Click Here to read the Judges’s Decision pdf The December 19th ruling clears the way for the lawsuit to proceed to Trial. In a December 19, 2022 Inman News article by Andrea V. Brambila Court deals blow to NAR, KW, Anywhere in commission suit (may require subscription) Michael Ketchmark, of Ketchmark & McCreight PC, attorney for the plaintiffs, is quoted “We represent over 500,000 Missourians, the court’s ruling today sets the stage for the October 16th jury trial in federal court in Kansas City. The defendants have kept many of the damaging emails and documents about their wrongdoing from the public eye. That is about to end. The day of accountability is coming.”  

The lawsuit, filed in 2019, won class action status in April 2022. The suit alleges that some NAR rules (NAR Multiple Listing Service Policy Statement 7.23) violate the Sherman Antitrust Act by inflating seller costs. 

In a separate order the Judge denied the defendant’s motion to exclude the testimony of Jeffrey Rothbart, a licensed real estate broker with some 19 years of experience in commercial and residential real estate transactions, and Dr. Craig T. Schulman, director of Berkeley Reasearch Group and professor of economic data analytics at Texas A&M University.  

Estimates (Missouri case only) indicate that damages in the lawsuit could be anywhere between $3 billion to $6 billion, which includes $1 billion in commission reimbursements and the treble damages awarded under the Sherman Act. Should the plaintiffs prevail in this lawsuit or the larger Moehrl v National Association of Realtors and real estate franchisors Realogy Holdings Corp., HomeServices of America, RE/MAX Holdings, and Keller Williams Realty class action lawsuit there is a very real probability of copy-cat lawsuits being filed in areas of the country not covered by these two actions, including the Northeast. Real estate agents could be watching attorney ads like this one in their local markets Hagens Berman Class Action: Real Estate Broker Commissions . 

For a much better analysis of this decision please consider reading Burnett v. NAR Summary Judgement Opinion: Per Se Liability! By Rob Hahn December 21, 2022, at NotoriousROB/Notorious VIP. May require a subscription but it is well worth it to stay informed on the potential impacts on YOUR business.