The plaintiffs in the Moratis commission lawsuit (formerly known as the Spring Way suit) took issue with the nationwide commission lawsuit settlement agreement reached by the National Association of Realtors (NAR).
On Wednesday, West Penn MLS, a defendant in the Moratis suit, filed a motion to stay the case, noting that it has opted into the NAR settlement agreement. In the motion, West Penn MLS said that it is seeking a stay until Judge Stephen R. Bough, who is overseeing the Sitzer/Burnett trial, issues his decision on the final approval of NAR’s settlement.
“If the motion for final approval of the Burnett settlement is granted following the fairness hearing in November of 2024, all individual and putative class claims against WPML in the instant case will be released unless plaintiffs and class members timely opt out of the Burnett settlement,” the motion states.
The MLS defendant claims that granting a stay of the litigation “does not prejudice Plaintiffs, as the case is in its infancy with a motion to dismiss pending and recognizes that the claims against WPML will soon be resolved if the Burnett court grants final approval of the settlement.”
Later that same day, the plaintiffs in the suit shot back. They claimed in their response to the motion that a stay “would cause significant prejudice to Plaintiffs, would not serve judicial efficiency, and would not significantly alter the ultimate burden on West Penn MLS” as the main reasons behind their opposition.
In addition to taking issue with West Penn MLS’ motion, the plaintiffs also took issue with the settlement agreements reached by NAR, as well as many of the brokerage defendants named in the commission lawsuits. They noted that the defendants and the class counsel in the Sitzer/Burnett suit agreed to expand “the class of plaintiff from home sellers who used a single MLS in Missouri to substantially all home sellers nationwide.”
“Thus, they would purport to settle all claims of all parties who were harmed by their antitrust conspiracy nationwide for 13% of what a jury found the harm to have been from that conspiracy in a single state,” the Moratis plaintiffs state in their response. “What is more, the settlement would also allow other parties who had engaged in the same or similar antitrust conspiracies nationwide to opt in to the settlement and be released in that action from any liability, some for free, and some for a similarly low dollar contribution.”
The response also dives into the business practice changes outlined in NAR’s settlement agreement, which include provisions such as banning the display of cooperative compensation offers from the MLS and mandatory buyer representation agreements.
In regard to removing offers of compensation from the MLS, the response notes that the ban does not prevent these offers from being made in other places.
“As a result, a key element of the antitrust conspiracy will not be halted, but simply driven underground where it will be harder to document and harder to stop through the antitrust laws in the future. The United States Department of Justice, for one, finds that insufficient,” the response states, while citing statements made by DOJ attorney Jessica Leal at a hearing for the Nosalek commission lawsuit.
The plaintiffs claim that “West Penn MLS is one of the key conspirators in this case, as well as one that holds a significant amount of the documentary evidence, as it was the conduit through which agents and brokers shared key information allowing the antitrust conspiracy to operate.” They argue that this is a reason why the defendants’ motion to stay the suit should not be granted.
Additionally, they say that the stay is indefinite as it hinges upon Bough’s decision, which is slated to be announced on Nov. 26, 2024.
“For how long the case would be unable to meaningfully move forward would depend upon the outcome in Missouri. But all outcomes mean significant delay. The best case would be a five-month standstill until the Western District of Missouri decided to reject or approve the settlement, with no appeals thereafter,” the plaintiffs state in their response.
“That is unlikely. More likely, this matter will be tied up while the 8th Circuit decides whether the Western District of Missouri’s decision, whatever it is, should be affirmed or reversed. In a case of this size, it would not be unexpected for one or more parties to seek a writ of certiorari. The delay could be years, during which evidence will grow stale, witnesses will forget key events, and members of the plaintiff class will pass away waiting for relief. The prejudice would be extreme.”
On the other hand, the plaintiffs claim that the prejudice experienced by West Penn MLS, if the court does not stay the case, would be minimal.
“The balance of equities is clear here: granting a stay would harm the Plaintiff class immensely. It would, in the long term, help West Penn MLS very little,” the motion states.
Ultimately, it will be up to Judge William S. Stickman, who is overseeing the suit in U.S. District Court in Pittsburgh, to decide. West Penn MLS did not return a request for comment.
