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More than a year after a Missouri jury issued its landmark verdict in the Sitzer/Burnett commission lawsuit, the National Association of Realtors (NAR), HomeServices of America, and all of the MLSs and brokerages that chose to opt into a settlement are hoping to finally get some closure next week.
On Tuesday, Nov. 26, Judge Stephen R. Bough will hold a final approval hearing for the aforementioned settlements. In anticipation of the hearing, the plaintiffs and settling defendants filed a motion for final approval on Wednesday.
According to the motion, 15 million postcards and 24 million emails were sent to members of the class. Using several notification mechanisms, attorneys believe they were able to reach 99% of settlement class members. As of last week, nearly 500,000 people had submitted claims to be part of the settlement, but eligible home sellers have until May 2025 to file a claim. By contrast, 39 class members have opted out of the settlement.
The filing also notes that 547 Realtor-affiliated MLSs and 15 non-Realtor MLSs have opted into NAR’s settlement through the mechanisms created by the attorneys.
The total settlement amount up for approval on Tuesday comes in at roughly $700 million, the bulk of which includes NAR’s $418 million deal and HomeServices’ $250 million settlement. The opt-in settlements from brokerages and non-Realtor MLSs total nearly $30.6 million.
If Bough’s ruling is consistent with his prior rulings on settlements reached by Anywhere, RE/MAX and Keller Williams, as well as those negotiated in the Gibson suit, the plaintiffs’ attorneys will be awarded one-third of the $700 million total — roughly $233 million — and an additional $16.5 million in expenses.
This would leave $450 million to be divided among class members. If split evenly among those who have submitted claims thus far, the awards would be roughly $913 per person.
“The Settlements provide significant financial recoveries to the Settlement Class in light of the strengths and weaknesses of the case and the risks and costs of continued litigation, including potential appeals, and taking into account the Settling Defendants’ financial resources,” the motion states. “The Settlements also include meaningful changes to the Settling Defendants’ policies that are likely to benefit consumers for years to come through lower commissions.”
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The motion also addresses various objections that have been raised against the settlements, including concerns raised by the Batton homebuyer commission lawsuit plaintiffs and University of Buffalo law professor Tanya Monestier.
In the motion, the plaintiffs claim that Monestier’s objection relied “entirely on anecdote and conjecture,” and that she failed to offer any realistic alternative to the business practice changes outlined in the settlement.
“Instead, she advocates for returning to the ‘old’ system — even though a jury deemed that system anticompetitive and found that the brokers enforcing and operating under it had overcharged consumers by more than a billion dollars in Missouri alone,” the filing states.
The motion also addresses Monestier’s claim that there was no enforcement mechanism for the business practice changes.
“The NAR Settlement expressly includes multiple enforcement and monitoring mechanisms each of which Prof. Monestier either ignores in her objection or describes inaccurately,” the motion states.
The parties note that the MLSs that are part of the settlement must provide “‘proof of compliance’ with the required practice changes when requested by Co-Lead Counsel.”
Additionally, the motion notes that some early studies show evidence that commission rates are already declining, but it will take more time before the full impact is known.
“Professor Monestier’s objection is based on the unrealistic expectation that the full force of practice changes to an anticompetitive system that has been in place for many decades will be felt immediately,” the attorneys wrote.
In addressing the objection filed by Batton plaintiff James Mullis, the attorneys wrote that Mullis and the Batton objectors are seeking to carve out indirect buyer claims from the releases, which they claim “ignores reality.”
“Every Class member sold a home during the class period, and most also bought homes. After all, few people sell a home without first buying it. And most home sellers then buy a different home with the proceeds because they need somewhere to live,” the filing states.
”Thus, most Class members had possible claims both as home sellers and home buyers. Yet, Settling Defendants quite reasonably balked at paying large amounts in settlement only to have the same people they just paid sue them again for the same alleged antitrust conspiracy.”
The attorneys note that each class member has the ability to weigh their claims and opt out of the settlement if they so choose. This gives them an opportunity to pursue similar litigation against the settling defendants.
“They can opt out and pursue buyer claims either individually or in Batton (should a court ever certify that class),” the filing states. “And people with buyer-only claims are completely unaffected because they are not part of the class. The only people included in the settlement— and thus the only people giving any release — are people who sold homes during the class period.”
In addressing the other objections, the attorneys claimed that the objectors either lacked standing, didn’t like the result of the case or were attorneys who had filed a copycat suit after the Sitzer/Burnett verdict. These include attorneys at Knie & Shealy, who are involved in the Burton suit in South Carolina.
