More challenges to NAR settlement; headaches for Hanna 

With the final settlement hearing for the National Association of Realtors and HomeServices of America less than two weeks away, a skirmish over objectors has surfaced. Meanwhile, Howard Hanna may not be off the hook in Pennsylvania. 

The latest on the NAR hearing: Tanya Monestier, who teaches at the University at Buffalo School of Law, filed a motion asking the court to reconsider its order compelling objectors in the Sitzer/Burnett case to attend the final settlement hearing in person if they want their objections to be considered.

The hearing is scheduled to take place in Kansas City on Nov. 26.

What did the court order? On Nov. 4, U.S. District Court Judge Stephen Bough issued an order stating that objectors must be present in court for NAR's final settlement hearing, saying that would ensure due process is satisfied. He issued the same order for the final hearing of the settlements reached by nine brokerages in the Gibson/Umpa case on Oct. 31. 

Several people who had submitted written objections did not attend that October hearing, citing previous obligations and the extra expense required to travel to the court. The judge set those objections aside, although he did address their arguments in a separate filing.

Who is Tanya Monestier, and what is she saying? Monestier is a law professor and a consumer advocate who has written extensively about buyer agreements — as well as a member of the seller class. She previously filed a lengthy, 136-page objection to the NAR settlement, citing a number of concerns about implementation and attorney fees. 

Monestier filed a motion on Nov. 12 asking the court to reconsider its order, stating that "this Court lacks the authority to compel in-person attendance after assuring class members that their voices would be heard if they played by certain rules outlined in the class notice." 

In a supplement to her motion, Monestier noted that the class notice said "As long as you filed and mailed your written objection on time, the Court will consider it" — implying attendance was not required. Judge Bough later changed course, saying there were "important reasons for requiring Objectors' in person appearance." 

Those reasons, according to court transcripts, were related to a specific objection accusing Judge Bough of criminal acts. That made him suspicious of the objectors' motivations "given the fact that now I have to have the U.S. Marshals monitoring that correspondence."

Monestier called this requirement an abuse of the Court's authority.

"I am confident that the Eighth Circuit will not justify violating class members' due process rights because a district Court is 'a bit suspect' and 'somewhat suspect' about objectors," Monestier wrote in her filing.

Plaintiffs respond: The plaintiffs' attorneys have asked Judge Bough to rule on Monestier's objection even if she does not attend the hearing. In response to Monestier's motion, they wrote: "Plaintiffs request that the Court consider and overrule her objection on the merits regardless of whether she attends the upcoming November 26, 2024 hearing. Plaintiffs will respond to it (and the few other timely submitted objections) ahead of the final approval hearing."

Others join in: Benny Cheatham, Robert Douglass, Douglas Fender and Dena Fender — who had previously objected to the NAR settlement — voiced support for Monestier's motion about compelling attendance, pointing out the inequitable nature of requiring objectors to be present but not requiring that of the plaintiffs themselves.

Howard Hanna dismissal appealed: In a separate case known as Moratis, plaintiffs have formally appealed the dismissal of defendants Howard Hanna and West Penn MLS.

The appeal came from plaintiffs Danielle and Jessie Kay, John and Nancy Moratis, Kaitlyn Slavic and Maria Iannome and was sent to the Third Circuit Court of Appeals in Pennsylvania on Nov. 8.

In dismissing Howard Hanna and West Penn from the case last month, Judge William Stickman IV cited the defendants' argument that there was no existence of an agreement, and thus no conspiracy, between the defendants.

"The buyer broker rule simply requires that the listing disclose the compensation, if any, that the buyer broker will receive," Stickman said in an Oct. 7 filing. 

A small, but key difference between this case — in which West Penn MLS allowed "zero" to be entered in the compensation field — and those naming NAR as a defendant was that NAR required listing brokers to offer some amount of compensation to the buyer broker.

Correction: An earlier version of this story mischaracterized the plaintiffs' motion in response to Monestier's filing. The plaintiffs do want the court to overrule her motion, but they want the judge to rule on the merits.