NAR Accuses Lawsuit Plaintiffs of Attempting to Dodge Cross-Examination

With just under three weeks before the first of the major commission lawsuits goes to trial, the potential for courtroom drama appears to be growing as three of the plaintiffs who launched the suit are attempting to withdraw as class representatives. 

Lawyers for the National Association of REALTORS® (NAR) and two brokerages named as defendants in the Burnett/Sitzer suit are asserting that Scott Trupiano, Ryan Hendrickson and Scott Burnett are trying to avoid exposing weaknesses on the witness stand by bowing out of their role, urging a judge to deny the plaintiffs’ move.

“Significantly, Defendants know that each of these witnesses have vulnerabilities that will be further exploited through live cross examination,” NAR lawyers wrote in a federal court filing yesterday. “Therefore, Defense counsel secured a written commitment from Plaintiffs’ Counsel ‘that plaintiffs will bring all the named plaintiffs to trial live.’”

It was not immediately clear what the “vulnerabilities” were that NAR and the other defendant’s lawyers referenced. Spokespersons for NAR, HomeServices of America and Keller Williams (the two brokerages whose names was appended to the filing) all declined to comment.

Lawyers for the plaintiffs did not immediately respond to RISMedia’s emailed requests for comment.

NAR lawyers attached an email, dated July 13, 2023, in which Michael Ketchmark, one of the lawyers for the plaintiffs, appeared to agree “that plaintiffs will bring all the named plaintiffs to trial live.”

“Defendants have relied on this promise and been (sic) approaching the trial assuming that live cross-examination of the named plaintiffs would be a critical part of their defense,” the lawyers wrote.

The filing also disputed the move on procedural grounds, saying that the plaintiffs needed to file a motion and receive a court order if they want to withdraw Trupiano, Hendrickson and Burnett, and calling the one-sentence notice filed by the plaintiffs “legally ineffective.”

Currently scheduled to go to trial on October 16, two major brokerages (namely, RE/MAX and Anywhere) have already settled in the case, paying out tens of millions of dollars each and agreeing to change policies. A second trial with similar class-action claims, Moehrl v. National Association of REALTORS®, et al., is slated for a trial next year.

Burnett, whose name is affixed to the case, was not an original filer in the suit, but joined early on, according to court documents. He and the other plaintiffs are recent home sellers, alleging in the suit that NAR, MLS and brokerage policies, including mandatory offers of non-negotiable buyer commission and MLS display rules, are anti-competitive and inflate costs for sellers.

Both this case and the separate but related Moehrl suit are seeking multiple billions of dollars in damages, for a class that includes past, current and future homesellers across multiple states. NAR and the other major brokerages have broadly defended their policies, though they have also tweaked or reinterpreted these rules since the suits were filed, with some MLSs allowing offers of zero for buyer commission.

In their filing, NAR and brokerage lawyers call the RE/MAX and Anywhere settlements “pennies on the dollar.”

“Furthermore, the sudden decision on the eve of trial to withdraw three class representatives raises questions about whether the withdrawal was designed to avoid testimony that could conflict with other class representatives, raising questions about the merits and/or the propriety of the class,” the lawyers wrote. “This is why Plaintiffs need to file a motion and explain the sudden need for these withdrawals.”

This is a developing story. Please check back here for updates.