The path forward for the settlement agreements reached by Anywhere, RE/MAX and Keller Williams with the home seller plaintiffs in the commission lawsuits has become a bit murkier.
Last week, two parties filed appeals with the Eighth Circuit Court of Appeals that seek to overturn Judge Stephen R. Bough’s May 9 decision to grant final approval of the three settlement agreements.
The first appeal was filed on June 4 by James Mullis, who is homebuyer plaintiff in the two Batton homebuyer commission lawsuits. The previous nationwide settlement agreements do not resolve the Batton plaintiffs’ claims as they filed their suits as buyers rather than sellers.
The filing of this appeal comes after the Batton plaintiffs attempted to block the final approval hearing for the settlement agreements. A day prior to the hearing, the Batton plaintiffs filed a motion for a temporary restraining order and preliminary injunction, seeking to prevent the three real estate firms from filing a proposed order granting final approval of their settlement agreements. Judge Andrea R. Wood, who is overseeing the two Batton suits in Chicago, denied their request.
A second appeal was filed by Spring Way Center, the original home seller plaintiffs in the copycat commission lawsuit filed in Pennsylvania in December. Like Mullis, the Spring Way Center also objected to the settlement agreements prior to their final approval, taking issue with the “fairness and adequacy“ of Anywhere’s settlement amount of $83.5 million. During the final approval hearing, Bough noted that he did not agree with the Spring Way Center’s objections.
Neither of the appealing parties have yet to file arguments as to why they believe Bough’s final approval should be overturned. But according to the briefing schedule, they must file an appellate brief by July 24, 2024.
Due to the appeals, no one in the settlement classes who has made a claim will receive payment until the appeals have been resolved. Additionally, the settling parties are not required to implement the business practice changes they agreed to in the settlements until after the appeals process, at which point the settlements will become effective.
As part of the settlements, the three real estate firms agreed to various policy changes, including provisions to no longer require agents to be members of the National Association of Realtors or follow NAR’s Code of Ethics or the MLS Handbook.
They also agreed to other changes, including that firms will require or encourage agents to make it clear to clients that commissions are negotiable, that agents will have the freedom to set or negotiate commissions as they see fit, and that agents will not be required to make offers of compensation or accept offers of compensation from cooperating brokers.
In an emailed statement, a spokesperson for Anywhere said the appeals were “neither unusual nor unexpected.”
“We have full confidence that our settlement is fair, reasonable, and enforceable, and that the trial court’s order to grant it final approval was absolutely correct,” the spokesperson added.
A spokesperson from RE/MAX shared a similar outlook.
“Since entering into the settlement in October 2023, RE/MAX, LLC has been committed to obtaining final court approval releasing all U.S. RE/MAX Broker/Owners and affiliates from claims in the Burnett (formerly Sitzer), Moehrl, and Nosalek cases. RE/MAX, LLC is pleased the district court granted final approval in May,” the spokesperson wrote in an email. “That said, an appeal of the order is neither unusual or unexpected, and RE/MAX, LLC will continue to vigorously defend the settlement during the appeal process. Ultimately, the Company believes the settlement is fair and reasonable and that the district court’s order should be upheld.”
Anywhere and RE/MAX did not clarify whether the appeals would impact their timelines for implementing the changes outlined in the settlement agreements.
Keller Williams did not return a request for comment.
