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A group of real estate heavyweights who are defendants in a high-profile commission antitrust suit this week asked a judge to rule in their favor before the case makes it to a jury trial.
The request came in the form of multiple motions for summary judgment in the Moehrl case, which is among the longest-running and best-known of the many ongoing commission suits. Defendants Keller Williams, HomeServices of America and its affiliates, and the National Association of Realtors all filed their own motions Tuesday asking the judge in the case to rule in their favor and against the homeseller-plaintiffs who filed the case.
Though the defendants each filed their own motions, they make similar arguments, including that they did not conspire to inflate costs. NAR’s motion also argues that the plaintiffs in the case “lack standing because they are not direct purchasers of cooperating brokers’ services,” that NAR’s rules “are not unreasonable restraints of trade,” and that the trade organization’s “model rules did not harm plaintiffs or sellers.”
Meanwhile, Keller Williams’ motion argues that the franchisor “had no involvement in the issuance and or enforcement of NAR rules.”
“There is simply no evidence — no emails, no meeting minutes, no testimony — showing any involvement by anyone associated with Keller Williams in any activities relating to the NAR rule Keller Williams is alleged to have knowingly conspired to adopt, implement, or enforce,” the motion continues.
The various defendants also filed additional court documents expanding on their arguments in favor of summary judgment and, among other things, citing past legal cases.
Like many other commission suits, the Moehrl case revolves around a NAR rule known as the Cooperative Compensation Rule or the Participation Rule. The rule requires listing agents to offer buyers’ agents compensation to submit a listing in a Realtor-affiliated MLS.
The homeseller-plaintiffs object to the rule and have argued that it violates the Sherman Antitrust Act.
The Moehrl case was filed in 2019 in Illinois and is not likely to go to trial before the end of next year. If a judge were to grant the motions for summary judgment, the case would never make it to trial at all.
The likelihood of that outcome, however, is unclear. The defendants in the Moehrl case are the same as those in Sitzer | Burnett, and they also filed motions for summary judgment in that similar antitrust suit. However, the judge in that case ultimately rejected those motions, and Sitzer | Burnett ended up going to trial in October.
That trial ended on Halloween with a verdict in favor of the homeseller-plaintiffs.
Both Moehrl and Sitzer | Burnett originally included Anywhere and RE/MAX among their defendants. However, those two companies have filed settlements in the cases. The settlements are expected to become finalized next year.
Inman has reached out to the various parties involved in Moehrl for comment on the motions for summary judgment. Both NAR and Keller Williams provided statements to Inman on the Moehrl motions. In its statement, NAR said that “compensation is always negotiable between agents and their clients.”
“The practice of listing brokers offering compensation to buyer brokers emerged in the free market over decades, and it benefits both sellers and buyers: sellers can sell their home for more and have their home seen by more buyers, while buyers have more choices of homes and can benefit from professional representation,” the statement adds. “NAR’s policies expressly prohibit MLSs, associations, and brokers from setting or suggesting real estate commissions or fees.”
In its statement, Keller Williams reiterated the claims in its motion, adding that “with the benefit of a full discovery record, the evidence is clear that Keller Williams has not participated in a conspiracy with NAR or other Defendants relating to the Cooperative Compensation Rule.”
Read NAR’s motion for summary judgment here:
