Will judges merge commissions copycats into one huge case? 

Seven federal judges have their work cut out for them as they wade through a stack of responses to a critical question: Should the commissions lawsuits be merged into one massive case? Dozens of arguments have been submitted — and live proceedings haven't even begun.

The Judicial Panel on Multidistrict Litigation in Charleston, South Carolina, is scheduled to hear oral arguments on March 28. The judges will determine whether nine lawsuits filed since October, including two large cases in Texas, should be rolled into one case and held in the same U.S. Western District of Missouri courtroom where the Sitzer/Burnett trial took place.

The judges may also consider a proposal by the National Association of Realtors to combine all of the known cases — and move them to a Northern Illinois or East Texas courtroom.

As of Feb. 28, more than 30 responses to the consolidation proposal were submitted by major brokerage companies like Redfin, eXp and Compass as well as real estate associations and individual plaintiffs involved in the nine cases under consideration.

Even some firms and organizations not directly involved in those cases — but named in other lawsuits that could get consolidated if the judges consider NAR's proposal — filed arguments ahead of the hearing.

Many defendants oppose consolidation, and here's why

Most of the written arguments were not in support of consolidation, with MLS and association defendants especially opposed. 

Every defendant in the two Texas cases, QJ Team and Martin, argued against consolidation, saying that centralization would be "inefficient and unduly burdensome." They also pointed out that NAR, central to many of the other lawsuits, is not named as a defendant in either case.

"The Missouri plaintiffs cherry pick facts and pending actions in an attempt to persuade the panel to centralize just nine cases, which name 131 unique defendants and involve few common fact issues, so that they can proceed before a judge who has issued rulings favorable to their legal position," attorneys in the Texas cases said in a response filed on Jan. 26.

The Texas defendants — more than 65 in total between the QJ Team and Martin cases — offered alternatives for the panel to consider, including informal coordination or consolidating just the Texas cases, which have 30 of the same defendants.

Others argued against consolidation because they claimed each case is unique and local in character. Attorneys for the Bay Area Real Estate Information System (BAREIS), a defendant in a California case known as Grace, noted that real estate associations and MLSs have their own rules regarding broker compensation. BAREIS is not affiliated with NAR, "and its rules expressly permit the seller's broker to offer no compensation to the buyer's broker."

"These associations are local; the question in Grace is whether they conspired with BAREIS in its local service area — not nationally," the response document stated.

BAREIS attorneys also noted that many of the defendants are smaller Realtor associations which "are not deep pockets," and putting them into one national lawsuit would impose an undue financial burden.

Others want consolidation, but not in Missouri

Quite a few respondents weren't opposed to consolidation, but they didn't support moving the case to the courthouse where a jury awarded $1.8 billion in damages to the home sellers in Sitzer/Burnett.

Most echoed NAR's position — consolidate all the cases and move it to Illinois or Texas — and added details relevant to their specific cases. Redfin attorneys said that if only nine cases are consolidated, the company would still be subject to several discovery phases because of lawsuits not in the consolidation group.

A complete consolidation, including the cases brought by homebuyers like Batton, would answer the basic question of commission fees and reduce the risk of inconsistent rulings, said the Redfin attorneys, who indicated a preference for holding the case in Northern Illinois.

Others who argued in support of Illinois noted that the district court is already handling several key cases (Moehrl, Batton), and the judge, Andrea Wood, is quite familiar with the claims.

Batton was not included in the original consolidation request, but attorneys in that case were not opposed to joining a consolidated case. "Although their lawsuits involve additional, separate allegations related to NAR rules that do not harm seller‐plaintiffs, buyer‐plaintiffs' claims involve sufficient common facts about NAR's rules to justify centralization with the seller‐plaintiff cases," the attorneys stated.

Howard Hanna, a defendant in the Pennsylvania-based Kay case, suggested Pennsylvania as a venue, noting that the Kay judge, Christy Wiegard, has a lower number of pending civil cases compared to the other potential jurists.

"Both Judge Wiegand and the Western District of Pennsylvania more broadly are thus remarkably well-positioned to take on the significant burden of managing proceedings in a complex antitrust MDL," Howard Hanna attorneys stated in their response.

Limited support for the original proposal

Only a handful of respondents submitted responses in favor of the proposal, including the plaintiffs in the Gibson and Umpa cases in Missouri, who filed the original consolidation request, and a plaintiff in an Arizona lawsuit.

This group cited Judge Stephen Bough's experience, having handled the Sitzer/Burnett trial and providing preliminary approval to the Anywhere and RE/MAX settlements, as a reason to have the consolidated case in Missouri.

They also noted that the cases they want to consolidate are just getting started, and no court has taken substantive action on them yet.