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Appeals against the final approval of the National Association of Realtors’ settlement resolving nationwide antitrust claims related to commissions are beginning to pour in, making clear that antitrust litigation in the real estate industry will continue for the foreseeable future.
University at Buffalo contracts law professor Tanya Monestier on Monday informed Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri that she would be appealing his orders approving the deal and awarding plaintiffs’ attorneys one third of the settlement payout to the Eighth Circuit Court of Appeals. The deal covers claims in cases known as Sitzer | Burnett and Moehrl and other homeseller-initiated antitrust lawsuits.
As a homeseller, Monestier is a member of the settlement class. On Oct. 28, Monestier filed a 136-page objection to the NAR settlement, calling it “the worst of all possible worlds” for consumers. More than a dozen other homesellers also filed objections by that deadline.
In her Dec. 2 filing, Monestier disclosed that, since Nov. 27, when Bough overruled her objections to the deal and denied her motion for reconsideration of an allegedly “unconstitutional” order to appear in person at the deal’s Nov. 26 fairness hearing, she has been in negotiations with the Center for Class Action Fairness at the non-profit Hamilton Lincoln Law Institute to represent her on appeal.
On the advice of attorneys from the institute, she submitted a motion to intervene in order to preserve her right to appeal after Bough struck her objection.
“Monestier will be challenging the court’s approval of the settlement and award of attorneys’ fees,” the filing reads.
“Plaintiffs will not advance this position because it contradicts their submissions to the district court and their own self-interests. Defendants will also not advance this position in light of their commitment to the settlement.
“Because Monestier’s position regarding rejection of the settlement and fee request is ‘entirely incompatible with the stance taken by’ plaintiffs, she is entitled to intervention as of right.”
On Tuesday, Bough denied the motion to intervene, saying it was unnecessary because “an objector need only timely file a proper objection with the district court to preserve their right to appeal,” which Monestier did.
Monestier told Inman she filed the motion to intervene in order to make sure she had standing to appeal.
“Because the Court struck my objection (along with a bunch of others), there may have been some question as to whether I could appeal,” Monestier wrote to Inman, via email. “But it seems like the judge believes I have a right to appeal, without this interim procedural step.”
Asked when she planned to file the notice of appeal, she said, “Soon. I think it has to be within 30 days of the court’s order.”
Meanwhile, other objectors have gone ahead and appealed. The first appeal was filed on Nov. 27, by Spring Way Center and other homesellers. On Dec. 2, another objector, Monty March, who has filed an antitrust lawsuit against the Real Estate Board of New York (REBNY), filed a notice of appeal.
In his objection, March protested that his claims should not be included in the NAR deal because they are unrelated to NAR.
“NAR is not a party in March, and REBNY is not a party in any real estate commission litigation outside New York City,” March’s filing said.
“This is because REBNY and NAR have absolutely nothing to do with each other. And they have had nothing to do with each other for three decades.”
Moreover, the $418 million that NAR agreed to pay in the settlement “is no way near sufficient to address both the nationwide harms of the nationwide NAR conspiracy and the discrete and separate harms stemming from the REBNY agreement/conspiracy,” the filing added.
On Dec. 3, Robert Friedman, who also filed an antitrust lawsuit against REBNY, filed his own notice of appeal challenging the final approval of not only the NAR settlement, but also HomeServices’ settlement and the settlements of the brokerages and MLSs that opted-in to NAR’s deal.
In Friedman’s objection, filed in October, he also pushed back against the deals resolving claims against REBNY. He also called for brokerages who have no connection to NAR, such as those operating exclusively in New York City under REBNY’s rules, to not be covered under the deal.
“The most egregiously unfair, unreasonable, and inadequate provision of the NAR settlement is one that appears unprecedented in its reach: all real estate brokerages whose 2022 ‘Total Transaction Volume’ falls below an arbitrary threshold of $2 billion … will be gifted a proverbial ‘get out of jail free’ card, regardless of their participation in the NAR conspiracy, culpability, potential exposure, or ability to pay,” the Friedman filing states.
“Sub-$2B Brokerages—which may include as many as six defendants in Friedman that operate substantially or exclusively in New York City and exclusively under REBNY rules — will be automatically covered by the NAR settlement without making any monetary contribution. The settling parties have made no showing how this is fair, reasonable, or adequate to Friedman and the REBNY Brooklyn Class.”
Friedman also objected to the lack of a requirement that brokerages prove their sales volume was under the $2 billion threshold, particularly if those brokerages did not appear in the T360 Real Estate Almanac brokerage rankings for 2022. Brokerages’ place in those rankings is what determines who is covered and who is not under the proposed NAR settlement.
Read Monestier’s motion to intervene (re-load page if document is not visible):
Editor’s note: This story has been updated to note that Robert Friedman has also filed an appeal against the final approval and provide details from his objection filed with the court.
