The ink is barely dry on Judge Stephen R. Bough’s final approval of the National Association of Realtors’ (NAR) nationwide commission lawsuit settlement agreement, but the ruling is already facing its first appeal.
On Wednesday, Nov. 27, one day after Bough held the final approval hearing, an objector and former lead plaintiff in what is now the Moratis commission lawsuit in Pennsylvania — Spring Way Center LLC — filed an appeal with the Eighth Circuit Court of Appeals.
On the day of the final approval hearing, the Spring Way objectors who had originally filed their own objection in late October due to the nationwide scope of the settlement, adopted the objections filed by University of Buffalo law professor Tanya Monestier and attorneys at Knie & Shealy, who represent the Burton commission lawsuit plaintiffs in South Carolina.
In her objection, Monestier took issue with several items. These include the business practice changes outlined in the settlement and the fees to be paid out to the plaintiffs’ attorneys.
In addition, in mid-November, Monestier filed a motion for reconsideration of Bough’s order that all objectors appear in person at the final approval hearing. In her motion, Monestier claimed that the court “lacks the authority to compel in-person attendance at a fairness hearing after assuring class members that their voices would be heard if they played by certain rules outlined in the class notice.”
The Burton plaintiffs took a different tack and objected to the nationwide nature of the settlement, noting that all but one brokerage in South Carolina was not automatically grandfathered into the NAR settlement.
“In other states, it is certain that there were no such brokerages,” the objection states. “This settlement leaves those States with wrongdoers who will not be punished, despite having made substantial profits at the expense of residents of those States, all because Co-Lead Counsel are personally uninterested in pursuing suit against them, deeming them too small.”
The objection also claimed that not all of the brokerages and MLSs that opted into NAR’s settlement did so by the opt-in deadline. It notes that many parties opted in but did not execute their supplemental settlement agreements until well after the deadline. Additionally, the objectors feel that the selection of the $2 billion-per-year transaction volume threshold — and 2022 as the year to base the settlement amounts on — was arbitrary.
At the final approval hearing, Bough denied Monestier’s motion along with the objections. In their notice of appeal, the Burton plaintiffs state that they are appealing Bough’s ruling on these objections and Monestier’s motion.
NAR’s settlement is not alone in facing appeals after its final approval. In the month following the final approval of the settlement agreements reached by Anywhere, RE/MAX and Keller Williams, two parties filed appeals.
In an emailed statement, a NAR spokesperson wrote that the trade group feels the Court came to the “correct decision” in granting final approval to the settlement.
“NAR will continue to advocate for the settlement on appeal,” the spokesperson added.
