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HomeServices of America and Douglas Elliman have teamed up in an attempt to get the Lutz homebuyer commission lawsuit dismissed.
The two brokerage defendants in the suit filed a motion to dismiss on Monday. Filed in Florida in late April, the Lutz suit accuses HomeServices and its subsidiaries, BHH Affiliates and HSF Affiliates, of conspiring to artificially inflate real estate agent commissions.
The plaintiff, James Lutz, is a resident of Colorado who purchased a home in Key Colony, Florida, in 2021 with the help of a buyer’s agent employed by a HomeServices of America franchise. Lutz is being represented in the suit by Randall P. Ewing Jr., from Korein Tillery LLC in Chicago, who is one of the lead attorneys on the Batton homebuyer commission lawsuits.
HomeServices of America was dismissed from the original Batton suit earlier this year.
In an amended complaint filed in early June, Lutz added Douglas Elliman to the suit as an additional defendant.
In their motion to dismiss, the defendants note that Judge Andrea R. Wood, who is overseeing the Batton suits, ruled that the “plaintiff lacks antitrust standing to pursue this claim because he is not an efficient enforcer of the antitrust laws.”
“Not only is Plaintiff’s claimed injury indirect — as he acknowledges by not asserting a damages claim under the Sherman Act — but there are more directly injured plaintiffs (i.e., home sellers) pursuing the same injunctive relief that Plaintiff seeks here,” the filing states.
“According to Plaintiff’s theory of injury, home buyers (like Plaintiff) are indirectly injured by the National Association of Realtors (NAR) Rules because ‘buyer-agents governed by NAR are technically paid through the seller-broker,’ and any cost borne by home buyers is by virtue of the fact that buyer-broker commissions are ‘baked into’ the purchase price of homes,” the filing adds. “The fact that Plaintiff’s claimed injury is indirect weighs against a finding that he is an ‘efficient enforcer.’”
The defendants also claim that the plaintiff does not and would not be able to allege any likely future injury as the real estate industry and NAR, through its commission lawsuit settlement agreement, has abandoned the rules and practices and rules at the center of the Lutz suit.
The filing also notes that the plaintiff’s state antitrust law claims should be dismissed, claiming it as an “example of improper ‘shotgun pleading,’ as Plaintiff has failed to ‘separat[e] into a different count each cause of action or claim for relief.’” In the complaint, Lutz asserted state antitrust claims in 28 jurisdictions.
Additionally, the defendants note that as the plaintiff only alleged antitrust injury in Florida, “he therefore lacks standing to assert claims on behalf of putative class members whose claims arise under other states’ laws.”
While HomeServices of America, as well as many other brokerage firms, have reached nationwide settlement agreements for the commission lawsuits, the agreements only pertain to the claims brought by sellers, not buyers, such as those in the Lutz suit or the two Batton lawsuits.
