The settlement domino effect appears to be accelerating.
Only one company—Keller Williams—chose to settle commission-focused lawsuits in the three months between November 2023 and February 2024, even as hundreds of companies were named in dozens of Burnett copycat suits across the country following a $1.8 billion verdict against the industry.
Now, in the last month alone, six companies have chosen to end litigation by paying and agreeing to change practices, with New York-based Douglas Elliman the latest to strike a deal ending litigation against the company.
According to a release, Douglass Elliman will pay $17.75 million (though much of that is contingent on the company’s future cash balance) over the next two years and receive immunity from lawsuits filed by recent home sellers, who alleged the company participated in a conspiracy to create and enforce rules that inflate commission in violation of federal antitrust laws.
“The settlement agreement reflects Douglas Elliman’s commitment to mitigating future uncertainties and limiting legal costs, which will benefit our Company, agents and stockholders,” said Howard M. Lorber, chairman and CEO of Douglas Elliman, in a statement. “Our global network of leading agents and luxury brand continue to position Douglas Elliman for future success as real estate markets stabilize. We remain confident our differentiated business position will enable continued growth over the long term.”
The company also agreed to make changes to policies mostly identical to what other settling brokerages have agreed to—things like reminding clients commission is negotiable, requiring disclosure of compensation, disallowing agents from sorting listings by commission offer and no longer advertising buyer services as free.
Most of these changes the company had already made, according to the release. Many others are superseded by the settlement agreed to by the National Association of REALTORS® (NAR), which among other things, will remove offers of compensation from NAR-affiliated MLSs.
Also like other settlement agreements, Douglas Elliman is admitting no wrongdoing. It will also not be receiving immunity from buyer lawsuits, in which the company is a defendant.
The only stipulation in the agreement that appears to diverge from other company’s settlements is the “contingent” payments. After paying out $7.75 million in the next 30 days, Douglas Elliman will only have to pay the remaining $10 million if it has a cash balance of $40 million over the next three years, with one payment of $5 million due at the end of 2025 and another at the end of 2027.
Other brokerages, as well as NAR, are also paying their settlements in installments over multiple years, without that kind of contingency. At least two brokerages have not released the terms of their settlements as of now.
While the agreement names two specific cases—Gibson v. NAR and Umpa v. NAR, which are two national Burnett copycat cases filed by the same lawyers who kicked off commission lawsuits back in 2019—so far it appears agreements like Douglas Elliman’s will cover all copycats filed by sellers.
Plaintiffs in those two lawsuits recently added several more companies with more detailed allegations, including smaller or independent brokerages.
Douglass Elliman’s settlement will also need to be approved by a judge, and could still be upended by the Department of Justice, which recently restarted a long-dormant inquiry into real estate practices.
