In a conference for the largest buyer-filed commission cases today, Judge LaShonda Hunt of the Northern District of Illinois, who only recently took over the complex litigation after the previous judge recused herself last month, said she would stay proceedings against Keller Williams, Anywhere and RE/MAX pending an appeals court ruling in the seller cases.
Hunt also notably chose to leave the current schedule of the cases in place, despite her admitted lack of knowledge regarding the issues and histories, which involve recent homebuyers making similar claims as seller-filed lawsuits like Burnett but with a different legal foundation.
“I’m not going to try to adjust the schedule at this point, I think it just makes sense to see how the case is progressing and then figure out what changes,” she said.
At the same time, though, Hunt said she was still “try(ing) to wrap my arms around these cases,” and was not even initially clear on whether plaintiffs were sellers or buyers.
She was also explicit that she would be leaning on the rulings and interpretations of her predecessor, Andrea Wood, who allowed the buyer cases to advance through the first stage of litigation.
The two cases, known as Batton, represent one of the more imminent and significant legal threats to the industry after seller cases appear mostly to be resolving—though the Department of Justice (DOJ) could still have a say in that process.
Seeking to certify a class going back to 1996 and including nearly all homebuyers, these buyer claims could come in front of a jury as soon as 2026, asserting that homebuyers were also harmed by mostly defunct National Association of REALTORS®’ (NAR) policies that require sellers to compensate buyer agents.
As the cases have continued to creep forward—now in the discovery process—one of the biggest issues has become whether companies who settled the seller cases garnered immunity from the nearly identical claims made by these buyers.
Judge Stephen R. Bough, when he approved those agreements back in May, ruled that buyers who also sold their home could not join the buyer lawsuits, potentially eliminating a large portion of the potential class members (and therefore also reducing damages).
The Batton plaintiffs attempted to intervene before Bough’s ruling, even asking Wood to issue her own counter-ruling (a request she sharply declined). They then appealed the buyer-immunity interpretation to the Eighth Circuit, where arguments are pending.
Hunt’s decision will allow the appeals court to make its own determination on the dispute, which could either significantly shrink the potential size of a class, or validate the fear of many defendants that their settlement agreements provide only partial protection against commission-focused lawsuits.
The decision to leave the case on its current schedule is also significant, with some defendants deep in the discovery process and others still fighting over jurisdiction. At the conference, Hunt also touched on some of the more substantive issues, even though the meeting mostly focused on technical and scheduling issues.
When Hunt wondered why there were seemingly very similar lawsuits being filed by both buyers and sellers, Kenneth Kliebard, a lawyer representing Anywhere Real Estate, explained that plaintiffs had successfully argued in Burnett that sellers wouldn’t have paid buyer commissions without the conspiracy between NAR and big brokerages, and that this “theory of harm” was affirmed by a jury.
In Batton, Kliebard said plaintiffs are advancing a different theory of harm based on commission being “passed on” into the sales price, “contrary” to the Burnett verdict interpretation.
Randall Ewing, representing the plaintiffs, eventually interjected, saying that the seller and buyer claims “gets into complex economics that we’ll have economics experts speak to.”
“But the idea that we’ve taken a completely inconsistent position with what a jury determined…isn’t one that we necessarily agree with,” Ewing said.
Wood previously affirmed the theories advanced by the Batton plaintiffs, saying their arguments were “plausible.”
For her part, Hunt expressed confidence that she had a grasp of the practical basics of the case, while still wading into the legal complexities.
“The issues are really simple, I’ve bought and sold property before, so I got it, but when you add the antitrust context to it and all of the arguments, it gets a little murky,” she said.
Other technical issues that came up include ongoing efforts by defendants to duck the case based on lack of jurisdiction (with HomeServices previously being dismissed from the case, only to be sued in another jurisdiction days later), expert reports from the seller cases and how unapproved seller settlements should be treated.
Hunt said she is planning on ruling on previously submitted mostions in the case within 30 days.
