Judge defends ‘fair’ settlements with NAR, HomeServices 

KANSAS CITY, Mo. — Less than 24 hours after closing the book on the Sitzer/Burnett commissions case and approving $700 million in deals with the National Association of Realtors and HomeServices of America, the judge put his reasons in writing.

Here are top takeaways from the 88-page document submitted Nov. 27 by Judge Stephen R. Bough (pronounced "bow," like the burnt umber bow tie he wore in court during the final hearing the day before).

The settlement was 'fair' and 'hard fought'

In his ruling, Bough said the settlement is "fair and adequate" and reflects "contentious and hard fought" negotiations, a statement that aligned with what NAR attorney Ethan Glass said in court the day before.

The settlement contained "extensive concessions," Glass said, including the fact that "significant members were not covered," but it was a necessary path forward that "allowed the entire world to move on and conduct business."

While NAR had wanted to appeal the case, that "would have been a catastrophe," Glass said.

Glass also pointed out in court that NAR is paying $418 million, nearly two times more than the next-largest settler (referring to HomeServices' $250 million deal), and "NAR didn't receive a penny of commissions" during the time period covered by the case.

In his ruling, Bough said the NAR and HomeServices settlements "provide for a significant financial recovery to the Settlement Class in light of the strengths and weaknesses of the case and the risks and costs of continued litigation" and also include substantial policy changes, "including removal of offers of compensation on the MLS." 

$700 million is enough — and it's not the end of the story

The jury that found in favor of the plaintiffs in this case awarded them $1.8 billion, something called out by one of the objectors to the settlement. In approving the lesser amounts, he told the judge, members of the class would now receive an amount equivalent to "grocery coupons."

Judge Bough, however, dismissed this take, a sentiment vigorously echoed by plaintiff's attorney Michael Ketchmark.

In his ruling, the judge said: "The NAR and HomeServices Settlements also account for only part of the recovery that the Class has obtained, or could obtain, in connection with the claims arising from the alleged conspiracy." And, he added, "Although some Class members have objected that they may not recover every dollar they paid to real estate agents, that is the nature of settlements, which necessarily reflect a compromise."

Ketchmark, for his part, told Real Estate News after the hearing that "we fought this tooth and nail every step of the way, and we extracted every dollar out of the defendants that we felt they were capable of paying. And anybody who thinks otherwise doesn't know the tenacity of the lawyers who are representing the plaintiffs in this case."

The class is at nearly 491,000 claims and counting, and the judge directed the plaintiffs' lawyers to prepare an allocation plan for the court's review — "an additional layer of protection" to ensure class memes are treated equitably, Bough said.

Judge to DOJ: Come back here if there are more issues 

The Department of Justice will need to see Judge Bough again if it has concerns related to the settlement, an issue that was hotly debated in court.

Glass argued NAR should not be sued for complying with the judge's order, while DOJ attorney Chris Bower asked the judge to protect the agency's ability to investigate "and bring action if necessary" — in whatever venue is appropriate.

In his filing, Bough affirmed that his court "retains continuing and exclusive jurisdiction over all matters relating to the administration and consummation of the Settlements and to interpret, implement, administer and enforce the Settlements."