Judge consolidates two major commission suits

There’s one fewer antitrust commission cases to keep up with after a judge agreed to consolidate two major suits.

Judge Stephen Bough — the same judge who presided over the landmark Sitzer/Burnett decision in the fall — agreed to merge the cases known as Gibson and Umpa, Inman reported. The case will proceed under the moniker of Gibson.

Consolidating the two cases “will conserve judicial resources and promote efficiency,” the judge’s order stated, noting that the cases deal with similar questions of the law. No defendants opposed the consolidation, and the plaintiffs filed an amended class action complaint on Tuesday.

Michael Ketchmark, the plaintiffs’ attorney in Sitzer/Burnett, filed Gibson immediately after the decision came in the historic broker commissions case. Umpa was filed two months later by the same legal team representing the plaintiffs in yet another notable lawsuit, known as Moehrl.

The updated complaint alleges that the National Association of Realtors and numerous top brokerages and franchises conspired to “impose, implement, follow and enforce anti-competitive restraints that cause home sellers to pay inflated commissions on the sale of their homes.” 

The complaint takes aim at NAR’s controversial Participation Rule, which mandates listing brokers to offer compensation to buyer brokers in order to place a listing on a Realtor-associated multiple listing service. That rule will soon be dismantled, after NAR came to a $418 million settlement to protect itself from litigation.

The amended suit seeks class-action status on behalf of anyone in the country who sold a home from Dec. 27, 2019 to the present who used an applicable listing broker and paid a commission to a cooperating broker. Those covered in select other cases, including Sitzer/Burnett and Moehrl, cannot take part in Gibson.

Outside of NAR, several defendants in Gibson have proposed settlements on the table, including @properties, which struck a deal this week. 

Brokerages that don’t or can’t opt into NAR’s settlement can either pursue a separate settlement in Gibson or remain defendants, according to Ketchmark.

— Holden Walter-Warner

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