Plaintiffs in the long-running mega-buyer commission cases are appealing the final approval of multiple settlement agreements in seller-side cases, after a judge ruled that those agreements would exclude many people who both bought and sold homes from pursuing their separate claims against big brokerages.
According to filings in federal court, lawyers representing James Mullis—one of the lead plaintiffs in the Batton case, in which recent buyers are suing several major real estate companies for antitrust violations—are seeking to overturn at least part of the settlements after a judge granted some immunity from buyer suits to Anywhere, RE/MAX and Keller Williams last month.
In an objection to the settlement filed back in April, attorneys representing Mullis—who both bought and sold a home in the time period covered by the commission lawsuits—argued that the Burnett and Moehrl cases made no mention of buyers and that settlements should not cover those separate claims.
“Mullis alleges that he and putative class members suffered damages each time they bought a home and the seller paid a real estate commission, whether because that anticompetitive commission resulted in a higher home price or otherwise,” the lawyers wrote. “In contrast, the (seller lawsuits) focus exclusively on the harm incurred by home sellers.”
In a statement, an Anywhere spokesperson told RISMedia that “(a)n appeal of this kind is neither unusual nor unexpected.”
“We have full confidence that our settlement is fair, reasonable, and enforceable, and that the trial court’s order to grant it final approval was absolutely correct,” the spokesperson said.
In a statement, a spokesperson for RE/MAX reiterated that the company “has been committed” to winning final approval of its settlement since first striking an agreement way back in October 2023, as just the second brokerage at that time to settle with commission-lawsuit plaintiffs.
“We will continue to vigorously defend the settlement during the appeal process,” the spokesperson said.
A spokesperson for Keller Williams declined to comment. A lawyer representing Mullis did not respond to an emailed request for comment.
The appeal comes after the buyer-side plaintiffs sought strenuously to stall or stop the final approval of the seller settlements, petitioning the judge overseeing their case—Andrea R. Wood—as well as Stephen Bough, who is overseeing the Burnett case and granted final approval to the agreements (over several objections).
Both Wood and Bough dismissed these arguments, with Wood saying that it was not her job to interfere in a separate process in a different federal district, and Bough writing that precedent allowed him to grant immunity to buyers because their complaint is based “on the same factual predicate” as the sellers.
Randall Ewing, a lawyer representing the Batton plaintiffs, disagreed, and cited interventions by the Department of Justice (DOJ) as evidence that buyers are also being harmed by separate (but admittedly similar) forces in the real estate industry.
“We’re not here trying to upend the settlement,” Ewing told Bough at a hearing on May 9. “We’re only here trying to ensure that the homebuyer claims that have been actively litigated are not being released, and we don’t believe they should be released.”
Ewing pointed out that buyers were not represented in the negotiation process of the seller settlement, and that there was no additional “consideration” won on their behalf.
“There’s also no evidence in the record or put forward by any party that these homebuyer claims were part of the give and take of negotiations,” Ewing said. “It’s (well-established) law that valuable—potentially valuable, significant claims cannot be released for no additional consideration.”
Ewing asked that Bough strike elements from the settlement agreements that granted buyer immunity and allow Wood to rule on those issues at the appropriate time in the Batton proceedings—which Bough again declined to do.
“This is not a case where there are different groups of plaintiffs with non-overlapping claims that might conflict,” he wrote in his ruling approving the settlements. “And of course, if a homeseller believed that they would be better off by opting out of the settlement to be able to pursue additional buyer claims, they were entitled to do so.”
The Batton plaintiffs are currently seeking to certify a class of homebuyers going all the way back to 1996, spread across nearly 30 states. Damages could easily reach into the tens of billions, if not higher, though the case is still a long way from a potential trial.
In the appeal, the Batton plaintiffs are scheduled to file a full brief making their arguments to the Eighth Circuit by July 24.
This is a developing story. Stay tuned to RISMedia for updates.
