If you are waiting on another commission lawsuit trial, it looks like you will be waiting a while. Judge Andrea R. Wood of the U.S. District Court in Chicago indicated this past spring that the trial in the Moehrl commission lawsuit would take place during the first half of 2024. But those plans seem to be in flux after a telephonic status hearing for the case on Wednesday.
During the hearing, Wood stated that she would be able to “try the case likely in the fourth quarter of 2024.”
An attorney for the plaintiffs, Robert Braun of Cohen Milstein Sellers & Toll, asked Wood if she would be willing to set a trial date for the third quarter of 2024.
“This case has now been pending for more than four and a half years, and we’re ready to move forward and towards trial,” he said on the call.
Ethan Glass of Cooley, an attorney for the National Association of Realtors (NAR), took a different view and urged Wood to not set a date just yet, stating that it is “way premature” as the court has yet to even take motions for summary judgment, “let alone decide them.”
Glass also asked if NAR could let the court know in a week or so if the trade group would like the court to extend its Dec. 19, 2023, deadline for submitting things like motions for summary judgment.
“We are still analyzing what the consequences of the [Sitzer/Burnett] jury verdict are,” Glass said.
A final ruling on the Sitzer/Burnett suit is not expected until April or May 2024, however, the plaintiff’s motion for injunctive relief must be filed before Jan. 8, 2024. The three defendants who were present at the trial, NAR, Keller Williams and HomeServices of America, have all vowed to appeal the verdict.
Glass added that NAR is unsure if there may or may not be reasons to extend the deadline, as the trade group and its counsel are still looking into things.
Braun argued that legal issues still playing out in the Sitzer/Burnett suit was not a reason to delay the trial in the Moehrl case.
Surprisingly, this view was supported by Timothy Ray of Holland & Knight, who is representing Keller Williams. Ray stated that he believes there were “serious errors” in the Sitzer/Burnett trial and that that trial should not be held up as a “standard for how we should go forward in Moehrl.” He added that Keller Williams would like to see the “Moehrl case to stand on its own consistent with the law” in its district and circuit.
Wood agreed with Ray’s view, stating: “I don’t think the fact that the other case has proceeded to trial and there are certain legal issues that will be challenged post-trial … affects what I need to do to keep the case moving here. It is a different case with some different issues, some overlapping issues, in a different circuit. So, I tend to agree with Mr. Ray’s point that this case should stand on its own.”
Looking ahead, Wood said she thought setting a trial date as soon as “it’s reasonable to do so makes sense.”
In the meantime, the parties have until Jan. 22, 2024, to submit a joint state report, in which they are to estimate the number of trial days and testimony hours they anticipate needing. Wood also instructed that the parties should take into account that Anywhere and RE/MAX are unlikely to participate in the trial if their settlements receive final court approval.
Filed in 2019, the Moehrl lawsuit, like the other commission lawsuits, take’s aim at NAR’s Participation Rule, which requires listing brokers to make a blanket offer of compensation to buyers’ brokers in order to list a property on the MLS.
The home seller plaintiffs allege that NAR and the corporate brokerage defendants have conspired to artificially inflate agent commissions, increasing the costs shouldered by home sellers. The suit received class-action status in March 2023.
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