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The original bombshell commission suit known as Moehrl looks to be headed for a January 2025 trial date, and the last remaining holdout in the case, Berkshire Hathaway affiliate HomeServices of America, continues its defense even as every other defendant has settled.
On Wednesday, March 27, attorneys representing HomeServices and its subsidiaries HSF Affiliates, BHH Affiliates, and the Long & Foster Companies noted that the National Association of Realtors had withdrawn its motion for summary judgment in the case after the trade group reached a $418 million proposed settlement with the plaintiffs on March 15 and requested that the court deem that motion and related motions to have been filed by HomeServices.
While HomeServices filed its own motion for summary judgment in the case at the same time as NAR in December, the company also stated at the time that the HomeServices defendants joined with NAR in its motions.
Judge Andrea R. Wood
In a March 25 case status report to the court, both sides in the case indicated that they would be available for a 3-4 week trial starting on Tuesday, Jan. 21, 2025. The trial would take place in Chicago at the U.S. District Court Northern District of Illinois Eastern Division before Judge Andrea Wood.
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Taken together, it appears that HomeServices is proceeding full-steam ahead with its defense, though the company has been careful to leave its options open. Asked whether HomeServices planned to settle, HomeServices executive vice president Chris Kelly told Inman, “The scheduling of the trial date in the Moehrl case is a normal and standard procedural step. HomeServices position remains unchanged as we are aggressively pursuing all options for resolving our involvement in the underlying litigation.”
Moehrl was filed in March 2019. Four years later, in March 2023, the case got class certification, prompting debate about the merits and impact of the multibillion-dollar case, with many urging the industry to stop arguing and prepare for what’s coming.
Class certification means potentially millions of homesellers in 20 MLS markets can ask to be reimbursed for $13.7 billion in commissions they paid to buyer agents between 2015 and 2020. With automatic trebling, that figure could go up to $41.1 billion.
On Oct. 31, in a smaller, similar case known as Sitzer | Burnett, jurors found that NAR, Keller Williams, RE/MAX, Anywhere, HomeServices and its subsidiaries, conspired to inflate broker commission rates paid by homesellers. The jury awarded $1.78 billion in damages to a class of approximately 500,000 Missouri homeowners. The trial took place in the U.S. District Court for the Western District of Missouri before Judge Stephen Bough.
Like Sitzer | Burnett, Moehrl names as defendants NAR, Anywhere (formerly Realogy), RE/MAX, Keller Williams, and HomeServices and its subsidiaries. Anywhere and RE/MAX settled both cases before the Sitzer | Burnett trial, for $83.5 million and $55 million, respectively. Keller Williams settled on Feb. 1 for $70 million and NAR settled on March 15 for $418 million. None of the settlements have received final approval from any court.
Like many other commission suits, the Moehrl case revolves around a NAR rule known as the cooperative compensation rule or the Participation Rule, which requires listing brokers to offer buyer brokers compensation to submit a listing in a Realtor-affiliated multiple listing service. The suit alleges the rule violates the Sherman Antitrust Act by inflating seller costs.
In November, the judge in that case signaled that Moehrl won’t go to trial until “likely” fourth-quarter 2024 and it now appears that timeline has been pushed to the first-quarter 2025.
On Friday, Feb. 2, HomeServices filed a petition to the U.S. Supreme Court for a “writ of certiorari,” asking the court to review an August ruling by the U.S. Court of Appeals for the Eighth Circuit affirming a lower district court ruling that HomeServices can’t enforce arbitration agreements signed by seller clients of its franchisees because the contracts the sellers signed were not directly with HomeServices. That petition still awaits a decision.
