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REX Real Estate wants to take its case against Zillow and the National Association of Realtors to all of the judges of the Ninth Circuit Court of Appeals.
On Monday, March 17, the discount brokerage petitioned for a rehearing “en banc,” meaning before all judges of the appeals court, not just the three-judge panel that initially heard its appeal.
“In affirming the district court’s decision upholding NAR and Zillow’s conduct with its memorandum opinion, the panel gave a back-of-the-hand dismissal, not only to REX and the U.S. Department of Justice, but also to the millions of consumers saddled with payment of inflated commission rates,” attorneys for REX wrote in the filing.
“It furthered NAR’s and Zillow’s entrenched dominance of the residential real estate services industry, and also sanctioned a district court decision that provides a blueprint for and incentivizes trade associations, like NAR, to circumvent the antitrust laws by promulgating anticompetitive rules, labeling them as optional, and deploying them through proxies.”
The filing is pushing back against the panel’s March 3 decision to affirm lower court rulings that threw out REX’s antitrust claims against NAR and Zillow and denied the now-defunct real estate brokerage a new trial against Zillow.
The rule at issue in the case is NAR’s no-commingling rule, which Realtor-affiliated MLSs may adopt to prohibit their participants from displaying listings that come from MLSs together with listings that come from non-MLS sources.
Once Zillow changed its business model to become an MLS participant in order to receive MLSs’ Internet Data Exchange (IDX) listing feeds, the company changed its site design to a two-tab display where the default tab showed MLS listings and “Other Listings” appeared in a separate tab that users had to click in order to see. Because for much of its existence REX did not participate in MLSs, the brokerage alleged that the rule, and Zillow’s subsequent implementation, caused traffic to its listings to plummet and violated state and federal antitrust laws.
The panel, made up of judges Sidney R. Thomas, Daniel Aaron Bress, and Ana de Alba, ruled that REX, also known as Real Estate Exchange, had failed to provide direct or circumstantial evidence of “concerted action” between NAR and Zillow and that the NAR rule at issue itself was not direct evidence of such action and, therefore, the lower court did not err in its ruling.
According to REX’s latest filing, however, the panel’s conclusion that the rule wasn’t evidence of concerted action was “flat wrong” because it conflicts with previous precedents from the U.S. Supreme Court, the Ninth Circuit and other circuits.
“Instead of recognizing the Rule for what it is — the end result of concerted action by NAR’s members — the panel treated NAR as if it were a single entity apart from its members, which could not conspire with itself, requiring REX to prove an agreement between NAR and Zillow from scratch,” the filing reads.
“That is error. Because the Rule itself was the product of concerted action among NAR members, there is also concerted action when anyone later joins NAR and agrees to adopt or enforce the Rule, as Zillow did.
“As the DOJ explained in its amicus brief and at oral argument, the Rule is a standing invitation to NAR members to ratify, adopt or enforce the Rule.”
The filing points to the panel’s assertion that the no-commingling rule, which REX calls the Segregation Rule, was “in fact” optional because 29 percent of MLSs chose not to adopt the rule. The filing says that fact is “immaterial” to whether there is concerted action as to the rule’s creation or its adoption.
“The fact that some members of an industry agree to fix prices and others do not, does not negate the existence of a price fixing conspiracy by those members who conspired to fix prices,” the filing says.
“Similarly, identifying which MLSs agreed to adopt the Segregation Rule only goes to the scope of the agreement, not whether there is an agreement. Joinder in a conspiracy is always voluntary.”
The filing blasts the panel’s alleged treatment of Realtor-affiliated MLSs “as if the MLSs had nothing to do with NAR.”
“The record shows, however, that local realtor associations, composed of NAR members, establish NAR-affiliated MLSs, which the associations own or operate, either alone or in conjunction with other associations,” the filing says.
“NAR members serve on national committees that recommend the promulgation of policies and rules that govern NAR members in the conduct of their business. Through those same committees, NAR members set the rules for NAR MLSs which, as of 2022, accounted for around 96 percent of all MLSs. Conduct of NAR MLSs is governed in minute detail by NAR’s Handbook on Multiple Listing Policy.
“Given the control that NAR members exercise over NAR MLSs through their national organization, NAR MLSs are instrumentalities of NAR members.”
Just because NAR delegated enforcement of the no-commingling rule to Realtor-affiliated MLSs doesn’t negate that the rule was produced by joint action of NAR members and that the entities that adopt and enforce it, including MLSs and Zillow, are part of an anti-competitive agreement, the filing alleges.
“Zillow itself recognized that the Segregation Rule is a NAR rule,” the filing says.
“When Zillow sought to rescind the Rule, it appealed to NAR not the NAR MLSs. Zillow directed its petition to NAR’s MLS Technology And Emerging Issues Advisory Board, the first in a series of NAR committees with responsibility for enactment and changes of the rules …”
According to REX’s filing, the panel failed in its task of looking past the “optional” label on the rule to assess the realities of its impact on the marketplace.
“This Court should not let NAR evade antitrust scrutiny through a carefully planned scheme, easily replicated by other trade associations, of promulgating an optional rule and then relying on instrumentalities or proxies (here NAR MLSs) to adopt and enforce it,” the filing says.
The filing also took the panel to task for declaring that the redesign of Zillow’s website allegedly harmed REX, rather than the rule. The filing argues that Zillow’s own executives, including Sara Bonert, Curt Beardsley and Errol Samuelson, knew that the rule was the source of the harm.
“They acknowledged in contemporaneous, internal emails and in deposition testimony as well, that the Segregation Rule was anti-consumer, protectionist, and anti-competitive and that it hindered entry of competing non-MLS brokers,” the filing says.
“Zillow’s executives did not make these striking admissions about the new website,” the filing adds. “This is what they said about the Rule itself. That testimony creates at least a disputed issue of material fact ‘about the source of REX’s anticompetitive harm,’ which at a minimum, should have gone to the jury.”
Zillow also did not “merely accept” and comply with the rule, as the panel said, according to REX’s filing.
“Rather it spent months and millions of dollars engineering a new website that fundamentally altered the way it had done business for fifteen years and ensured through complicated engineering protocols that MLS listings were displayed separately from non-MLS listings,” the filing says.
“When Zillow found a listing under the wrong tab, it moved the listing to enforce the Segregation Rule. Zillow was not merely a passive participant, but rather an active enforcer of the Segregation Rule and a member of the scheme itself.”
REX contends that it is “beside the point” that gaining access to IDX feeds benefited Zillow’s business.
“Joining a conspiracy always confers a benefit on conspirators, otherwise, they would not join. The true issue is whether Zillow, which knew the Segregation Rule was anti-consumer and protectionist, violated federal antitrust law by agreeing with NAR and its proxies to enforce the Rule in exchange for access to IDX data.
“Zillow had choices. It could have kept doing business as it had, with coverage of 98% of the homes for sale in the United States. It could have challenged the Segregation Rule, which it knew was bad for consumers and competition.
“Or it could agree to enforce NAR’s rule despite the harmful consequences because joining the conspiracy was good for Zillow’s bottom line. Zillow made the wrong choice.”
According to the filing, that choice had “an enormous adverse impact on homeowners” by protecting comparatively high commission rates.
“The Segregation Rule protects those inflated rates by preventing competition from innovative companies such as REX that seek to drive down commission rates by operating outside of the NAR/MLS system,” the filing says.
“REX’s expert, Dr. David Evans, opined that but-for the Segregation Rule, competition from REX and copycat companies would have driven down commission rates and collectively saved consumers tens of billions of dollars, … and saved individual consumers thousands of dollars or more.”
If REX’s request for an en banc rehearing is denied, the company will have to decide whether to attempt to take its case from the Ninth Circuit to the U.S. Supreme Court.
Inman has reached out to NAR and Zillow for comment and will update this story if and when responses are received.
Read REX’s filing (re-load page if document is not visible):
By offering an option to skip state and national Realtor membership, the local association stands to earn 84 percent more per agent while brokers and agents pay hundreds less, according to an analyis.
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As more agents and brokers chafe under the requirement that they become Realtors in order to access multiple listing services, local Realtor associations stand to make more money at the expense of their state and national counterparts by offering a non-Realtor MLS option.
Subscribers to Phoenix Realtors’ non-member MLS access pay $249 per year, which is $114 more than an annual membership to Phoenix Realtors: $135. Therefore, Phoenix Realtors stands to make 84 percent more in revenue per agent or broker making the switch to non-member MLS access.
“Let’s assume about 95 percent of the 10,000 PAR members are on the legacy plan, paying $135/yr. Which is around $1.3M/ yr,” wrote real estate consultant Greg Robertson on his Vendor Alley blog last week.
“If they get 50 percent to switch to ‘Non-member access’ plan, then their annual revenue will jump to 1.8M/yr. An increase of $500K! That’s almost a 40 percent increase in revenue.”
Robertson and fellow consultant and blogger Rob Hahn first pointed out the potential revenue jump through this option on their Industry Relations podcast last week.
“We’ve all been worried about how associations would survive without revenue from the MLS. And it turns out the answer is to offer a membership plan that doesn’t include State or National membership!” Robertson wrote.
Why agents and brokers would switch has to do with a controversial NAR policy known as the three-way agreement, which requires agents and brokers to join Realtor associations at all three levels — local, state, and national — if they want to be Realtors.
Because of NAR’s three-way agreement, agents and brokers who are also Realtors pay a total of $466 in member dues:
Phoenix Realtors: $135
Arizona Association of Realtors: $175
National Association of Realtors: $156
That figure goes up to $511 when NAR’s $45 assessment to pay for its consumer ad campaign is added.
Therefore, an agent or broker who chooses non-member MLS access would end up paying $262 less compared to Realtor members.
“That’s real money,” Robertson wrote.
Both members and non-members would also pay $468 per year to the Arizona Regional MLS (ARMLS).
Andy Fegley | Credit: LinkedIn
Asked about the blog post’s assertion that Phoenix Realtors stands to make more in revenue by promoting its non-member MLS option, Phoenix Realtors CEO Andy Fegley told Inman, “It wouldn’t be appropriate for us to comment on the conclusions drawn in third-party content.”
According to Fegley, Phoenix Realtors currently has more than 10,000 members and has “received substantial interest from brokers in the non-member MLS access subscription option, though it is too early to provide specifics around subscriber count.”
Under the non-member MLS access option, subscribers get access to state-compliant transaction forms, though not those created by the Arizona Association of Realtors; free continuing education classes; FastStats market data reports that are also available to the public; Supra lockbox access; and Listing Media Services photography and image services.
Such subscribers do not get legal aid or access to local business discounts as they would have under the previous MLS Choice option (see below).
Phoenix Realtors’ MLS Choice benefits comparison
“There is no fundamental difference between MLS Choice and non-member MLS access — This is the same offering, only the name has been changed to eliminate confusion,” Fegley told Inman.
“Most importantly, the new name makes clear that licensees who purchase this subscription option are not Realtors, cannot use the Realtor mark, and do not belong to local, state or national Realtor associations or have access to the many benefits of Realtor membership.”
Phoenix Realtors has offered an MLS-only option since 1994, when NAR eliminated the requirement that participants in Realtor-association MLSs must be Realtor association members, allowing MLSs to choose whether or not non-Realtors could subscribe to their platforms.
It is unclear, however, how many of the above benefits came with that and how much that option cost. Phoenix Realtors declined to comment when asked.
One factor that may impact how many agents and brokers switch to the non-member MLS access option is that both Phoenix Realtors and ARMLS must continue to follow NAR rules and require subscribers to follow NAR rules.
This means that agents cannot choose for themselves whether or not to be Realtors other than in their choice of brokerage. Under NAR rules, brokers — also known as “principals” — decide whether or not they and their agents will be Realtors.
If brokers choose to be Realtors, then dues must be paid for all of their agents under NAR’s “fair share” dues formula — a rule that at least one antitrust lawsuit has challenged. If brokers choose not to be Realtors, none of the licensees in their firm may hold Realtor membership.
Editor’s note: This story has been updated to note that Phoenix Realtors declined to comment when asked which benefits were included in its previous MLS-only option and how much it cost.
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A three-judge panel on the Ninth Circuit Court of Appeals has ruled against REX Real Estate, affirming lower court rulings that threw out its antitrust claims against the National Association of Realtors and Zillow and denied the now-defunct real estate brokerage a new trial against Zillow.
U.S. District Court judges Sidney R. Thomas, Daniel Aaron Bress, and Ana de Alba ruled Monday that REX, also known as Real Estate Exchange, had failed to provide direct or circumstantial evidence of “concerted action” between NAR and Zillow and that the NAR rule at issue itself was not direct evidence of such action and therefore the lower court did not err in its ruling.
The rule at issue in the U.S. District Court for the Western District of Washington was NAR’s no-commingling rule, which Realtor-affiliated MLSs may adopt to prohibit their participants from displaying listings that come from MLSs together with listings that come from non-MLS sources.
Once Zillow changed its business model to become an MLS participant in order to receive MLSs’ Internet Data Exchange (IDX) listing feeds, the company changed its website design to a two-tab display where the default tab showed MLS listings and “Other Listings” appeared in a separate tab that users had to click in order to see. Because for much of its existence REX did not participate in MLSs, the brokerage alleged that the rule and Zillow’s subsequent implementation caused traffic to its listings to plummet and violated state and federal antitrust laws.
On Feb. 13, the Ninth Circuit held oral arguments in the case, with each side and the U.S. Department of Justice getting a chance to speak. Alice A. Wang, counsel to the assistant attorney general at the DOJ’’s Antitrust Division, asked that the case be sent back to the district court, arguing that “an optional rule could be mandatory in practice,” “the adoption of an optional rule can itself be concerted action,” and “an optional rule can serve as an invitation for others to join in a common plan.”
But the three-judge panel disagreed.
“Each NAR-affiliated multiple listing service (‘MLS’) independently chose whether to adopt the rule, and indeed twenty-nine percent of them did not,” the ruling says.
“The rule was in fact optional and does not establish a [Sherman Act] agreement by itself.”
The judges also concluded that Zillow independently redesigned its site to comply with the rule.
“REX has not provided either direct or circumstantial evidence demonstrating that NAR agreed to this website design, or that Zillow did anything more than ‘merely accept[]’ and comply with the optional no-commingling rule promulgated by NAR and adopted by some MLSs,” the ruling says.
“Nor did the no-commingling rule itself direct how Zillow or others should separately display listings from MLS and non-MLS sources.”
The judges noted that REX hadn’t clearly made any separate claim of conspiracy between Zillow and individual MLSs that didn’t include NAR.
“In its Amended Complaint, REX referred repeatedly to the ‘NAR/MLS regime’ or ‘NAR/MLS cartel,’” the ruling says.
“REX also alleged a nationwide conspiracy ‘[b]ecause Zillow’s universal display change concealing non-MLS listings is implemented nationally’ and did not limit its allegations to only those jurisdictions where an MLS had adopted the no-commingling rule.
“Any conspiracy between Zillow and MLSs alone was not clearly raised before the district court and accordingly need not be considered on appeal.”
The judges concluded that Zillow had provided “sufficient evidence” for the district court to instruct the jury on Zillow’s reasonable business practice defense to REX’s claims.
“As the district court noted in its denial of REX’s motion for a new trial, Zillow provided evidence at trial that it designed its two-tab display thinking REX’s listings would not be included on either tab after Zillow switched to IDX feeds,” the ruling says.
“Later, at REX’s request, Zillow accommodated REX by including its listings on the ‘Other listings’ tab. The district court correctly noted that ‘[t]he jury could have viewed this last-minute decision as being in the best interests of both REX and Zillow and therefore reasonable.’
“Zillow was thus entitled to receive a jury instruction on its reasonable business practice defense.”
In an emailed statement, an NAR spokesperson told Inman, “In affirming the decision of the district court, the appeals court emphasized what we’ve said from day one—NAR’s no-commingling rule never constituted an antitrust violation.
“The rule is optional, leaving MLSs the choice whether to adopt it, and, in fact, 29% of them chose not to. We are pleased to put this meritless lawsuit behind us and maintain our focus on delivering value for our membership.”
Inman has reached out to REX’s outside counsel, Boies, Schiller & Flexner, and will update this story if and when a response is received.
“Zillow was founded on increasing transparency in real estate, and we have a long history of advocating for consumers through our products and services,” a Zillow spokesperson told Inman.
“We’re pleased with the Ninth Circuit having affirmed what we’ve said all along – REX’s claims have been without merit since the start of this matter.”
REX’s antitrust claims against NAR and Zillow were thrown out before trial, REX lost on its remaining claims at trial, and then the brokerage was subsequently denied a request for a retrial. REX appealed in February 2024 and today’s ruling comes just over a year later.
Unless REX chooses to take its case to the U.S. Supreme Court, this may be the end of the line for the flame-throwing brokerage.
REX’s investors and advisors included Governors Chris Christie and Jeb Bush. The company alleged it had worked with the DOJ in an investigation against NAR and sent the antitrust enforcer hundreds of recordings of agents steering their buyer clients away from REX listings.
In October 2021, REX operated in 41 markets in 20 states. At that time, the brokerage told Inman its overall market share in the second quarter of 2021 was 0.05 percent. REX’s market share was highest in Jacksonville, Florida (0.16 percent) and Los Angeles (0.15 percent).
As of Aug. 23, 2021, REX had 145 real estate licensees, who were salaried, and 402 employees total, including client support staff and data scientists. The brokerage had 235 active listings. Counting those that had signed a listing but had not gone live yet and those that were in escrow, REX had 548 committed listings, the company told Inman.
The firm would cease operations less than a year later.
Read the appeals court’s ruling (re-load page if document is not visible):
Editor’s note: This story has been updated with statement from NAR and Zillow and background information about REX.
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Two Michigan brokers and an agent have clapped back at the National Association of Realtors’ attempt to have their antitrust suit tossed out of court, saying they want Michigan to join the few other states where Realtor membership cannot be a requirement to subscribe to a multiple listing service.
“While Defendants allege that Plaintiffs seek to challenge the mandatory requirement of membership to access the MLS but want to retain the full benefits membership provides, such an allegation is false,” the filing reads.
“Plaintiffs only seek access to the MLS much in the same way the states of California, Georgia and Florida allow without any other requirements or obligations to the Defendant organizations.”
The filing notes previous court decisions, particularly Thompson v. Metropolitan Multi-List Inc. where, in 1991, the Eleventh Circuit Court of Appeals ruled that tying MLS access and association membership violated federal antitrust law and said the plaintiffs “seek a similar outcome here.”
The Thompson decision only applies to Alabama, Georgia and Florida. In another case, the California Supreme Court ruled in 1976 that a Realtor association in affluent Marin County violated the state’s antitrust law by denying nonmembers access to its MLS.
However, in several other occasions, state and federal courts have backed the right of Realtor associations to limit MLS access to Realtors, including in cases that reached the 1st, 5th, 6th and 7th federal circuit courts of appeals.
This particular case was filed on Aug. 12 by Douglas Hardy, M.D., the broker-owner of Signature Sotheby’s International Realty in Southeastern Michigan, which has about 100 agents and brokers; Glenn Champion, Esq., a primary broker for the same brokerage; and Dylan Tent, an agent with the same brokerage.
The suit, filed in the U.S. District Court for the Eastern District of Michigan, names NAR, the Michigan Association of Realtors, the Grosse Pointe Board of Realtors, the Greater Metropolitan Association of Realtors, the North Oakland County Board of Realtors, and Michigan’s largest MLS, Realcomp II, as defendants.
The suit accuses them of civil conspiracy, economic coercion and unfair restraint of trade in violation of the federal Sherman Antitrust Act and the Michigan Antitrust Reform Act.
According to a disclosure statement, Realcomp II is owned by the Detroit Area Board of Realtors, Eastern Thumb Association of Realtors, Lapeer and Upper Thumb Association of Realtors, Detroit Association of Realtors, and the Livingston County Association of Realtors, but those trade groups are not named as defendants.
“Defendants’ conduct as illustrated through their mandatory requirement that all brokers and agents be members of their organizations in order to access the MLS and the associated ability to market properties is unlawful and creates Antitrust violations, and their uniform enforcement of those practices to control the market creates a conspiracy,” the Feb. 21 filing reads.
The complaint seeks to represent a class made up of all Michigan agents and brokers who are required to be members of NAR, MAR, the local Realtor associations, and/or those who must use Realcomp II in order to access the MLS.
A NAR policy known as “the three-way agreement” requires that agents and brokers join a local, state and the national association in order to be Realtors. NAR does not require Realtor membership for MLS access — that is left up to MLSs and the Realtor associations that own them.
“The Defendants’ practices are not limited to Michigan and in fact are present in most states where these requirements are similarly dictated by the NAR and the state and local boards,” the filing says.
“Defendants coerce Plaintiffs to belong to their organizations by wielding their market power and thereby force brokers and agents into membership and paying their requisite fees.”
The Hardy plaintiffs’ filing asserts that the tying of Realtor membership to MLS access has a “substantial effect” on interstate commerce.
“In Southeastern Michigan alone, there are over 16,000 members in Defendant organizations and over 35,000 members in the State of Michigan paying tens of millions of dollars annually to Defendants to access the MLS and market real estate listings,” the filing says.
“Plaintiffs seek to challenge this compulsory membership and Defendants’ policies as unlawful.”
The Hardy plaintiffs decided to file the suit after NAR came to a proposed settlement of multiple antitrust lawsuits, whose rule changes the pros say will harm agents, brokers and consumers.
Specifically, the plaintiffs allege that the unilateral decision to do away with “the guaranteed broker commission” as part of the settlement “greatly diminished any value created by the compulsory membership requirement” promulgated by the defendants.
But the settlement was not the only factor in the tarnishing of the associations’ value to the plaintiffs. The filing pointed to the various scandals that have rocked NAR recently.
“[T]he NAR has been the subject of much scrutiny over the last 12 months as several investigations into the practices of the NAR have yielded multiple examples of gross financial mismanagement, sexual misconduct by its leadership and other improprieties,” the filing says.
“These developments have furthered Plaintiffs’ dissatisfaction with the Boards and the required membership requirements.
“By bringing this action, Plaintiffs seek to have the same option as is being afforded those brokers and agents in Georgia, California, Florida and Arizona.”
NAR submitted its second motion to dismiss the Hardy suit in January. Friday’s filing urged the U.S. District Court for the Eastern District of Michigan to deny that motion, saying their claims are “plausible” and “viable” and should be allowed to proceed.
Should the court find that the current complaint, which has already been amended once, is “deficient,” the plaintiffs asked that they be allowed to file another amended complaint.
The Michigan agent and brokers are not the only ones to object to the requirement many MLSs have that they join NAR in order to access the MLS. Lawsuits challenging the requirement that agents belong to local, state and national Realtor organizations in order to access the MLS have been filed in Pennsylvania, Texas, and Louisiana.
Read the plaintiffs’ response to NAR’s motion to dismiss (re-load the page if document is not visible):
Real estate companies eXp and Weichert will have to offer representatives who are best able to testify regarding settlement negotiations in the separate, but similar, Hooper commission suit.
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Representatives from eXp and Weichert will be deposed next week as the real estate companies attempt to fight off allegations that they negotiated a “sweetheart deal” to resolve commission-related antitrust claims against them nationwide.
On Feb. 21, attorneys for homeseller plaintiffs in a case known as Gibson informed the U.S. District Court for the Western District of Missouri that on March 5 and 7, respectively, they will take videotaped depositions of the designated representatives of Weichert and eXp “best able to testify” under oath regarding settlement negotiations in a separate, but similar, commission suit known as Hooper.
“eXp has a duty to designate one or more officers, directors, managing agents, or other persons with knowledge to testify fully regarding the topics listed in Exhibit 1,” one of the filings reads.
“eXp must also promptly confer in good faith about the matters for examination. The deposition(s) will be taken before a Notary Public or some other officer authorized by law to administer oaths for use at trial.”
Both Weichert and eXp attempted to reach settlements in the Gibson case last year, but negotiations broke down, and the companies instead mediated nationwide settlements with attorneys for plaintiffs in Hooper, agreeing to pay $8.5 million and $34 million, respectively.
The Missouri court is currently weighing claims by the Gibson plaintiffs that eXp and Weichert engaged in a “reverse auction,” or a legal strategy in which a defendant negotiates a settlement with attorneys who are willing to accept settlement amounts less than attorneys in a separate case.
In a statement, eXp spokesperson Noor Marzook told Inman, “[W]e remain focused on securing approval of our settlement of the seller-side commission cases and confident the Georgia judge overseeing the Hooper case will find the settlement to be fair, reasonable and adequate.” The company declined to say who would testify at the deposition on eXp’s behalf.
Inman has reached out to Weichert for comment and will update this story if and when a response is received.
According to Friday’s legal filings, the representatives of the companies will be asked to cover these nine topics:
Communications between eXp/Weichert and any mediator used or considered in connection with any settlement negotiations in the Hooper case.
Communications between eXp/Weichert and plaintiffs’ counsel in the Hooper case, including but not limited to all substantive settlement communications, scheduling communications, mediation statements, financial documents, and draft and final settlement agreements.
Communications between eXp and Weichert regarding any settlement negotiations or agreements in the Hooper case.
Any documents provided to plaintiffs’ counsel in the Hooper case in advance of mediation.
Any binding term sheet executed in the Hooper case.
The Settlement Agreement executed in the Hooper case, including but not limited to the amount agreed to be paid.
Any disclosures to any mediator and/or plaintiffs’ counsel in the Hooper case regarding settlement negotiations actually conducted or that might be conducted with plaintiffs’ counsel in the Gibson case, Umpa case, or any other case alleging an anti-competitive agreement to adopt, enforce, or maintain a rule requiring cooperative compensation offers on a listing service.
Settlement communications with plaintiffs’ counsel in any case, other than Hooper, that alleges an anti-competitive agreement to adopt, enforce, or maintain a rule requiring cooperative compensation offers on a listing service.
Communications with any mediator in any case, other than Hooper, that alleges an anti-competitive agreement to adopt, enforce or maintain a rule requiring cooperative compensation offers on a listing service.
Separately, on Monday, Feb. 24, Judge Stephen R. Bough, who is overseeing the Gibson suit, denied motions to compel arbitration and stay the case filed by two other defendants in the case, William Raveis Real Estate and Berkshire Hathaway Energy (BHE), the parent company of HomeServices of America. The companies had asked that members of the purported class for Gibson be forced to abide by arbitration agreements they signed as homesellers.
Bough rejected the motions because the Gibson case has not yet received class certification and “absent class members are not parties to a case until a class is certified,” so they are not yet subject to the court’s jurisdiction.
More significantly, however, Bough noted that neither BHE or Raveis had signed such agreements themselves. Rather, homesellers had signed them with the companies’ affiliates.
“As this Court and the Eighth Circuit have previously held, nonparties cannot enforce contracts and therefore cannot compel arbitration,” Bough wrote.
The Gibson suit was the first antitrust commission suit filed after an October 2023 jury verdict in the Sitzer | Burnett case awarded billions to a class of homeseller plaintiffs in Missouri.
Like Sitzer | Burnett, the Gibson suit challenges a now-defunct National Association of Realtors rule requiring listing brokers to offer compensation to buyer brokers in order to submit a listing to a multiple listing service, which the plaintiffs allege violated the Sherman Antitrust Act.
But the Gibson suit’s scope is potentially much bigger than that of its predecessor: Gibson seeks class-action status on behalf of “all persons who listed properties on a Multiple Listing Service in the United States using a listing agent or broker affiliated with” the corporate defendants and who paid a buyer broker commission from Oct. 31, 2019, until the present.
Several other defendants have settled the Gibson case, including Compass, Douglas Elliman, The Real Brokerage, @properties, Redfin, Realty ONE Group, Engel & Völkers, HomeSmart, United Real Estate, NextHome, the Keyes Company, John L. Scott Real Estate Affiliates, The K Company Realty, Real Estate One and Baird & Warner.
Bough has granted preliminary approval to those deals and a final approval hearing for the deals is scheduled on June 24 at 1:30 p.m. Central.
