Judge rejects HomeServices’ mistrial motion in Sitzer commissions trial

The defendants in the landmark commissions suit unfolding in Kansas City seized on a video played in court to call for a mistrial, with one attorney bidding to have the proceedings called off entirely. 

The judge in the case refused a request from to grant a mistrial on Wednesday, Inman reported. The decision came after HomeServices filed a motion claiming an “ambush,” followed by demands by attorneys for fellow defendants Keller Williams and the National Association of Realtors. 

“We are not asking for a new trial,” Glass said.

An attorney for the plaintiffs played a video from a 2019 podcast interview featuring Allan Dalton, CEO of Real Living Real Estate and an executive at Berkshire Hathaway HomeServices. In the clip, Dalton railed against the idea of cutting commissions, rhetorically asking if he’s a “bleeping bleeping hooker standing outside the Lincoln Tunnel at three o’clock in the morning giving bleeping bleepings to sailors?”

HomeServices’ counsel argued that the video wasn’t on the plaintiffs’ list of exhibits. Robert MacGill said the defendants would have deposed Dalton and the podcast host for more information and even potentially called them to testify during the trial.

The defendants also argued that the plaintiffs’ attorney referenced an Inman article that would have encouraged the jury to do outside research, which is against the rules.

The judge, however, wasn’t moved by the mistrial arguments. He told the jurors to disregard references to the Inman article after polling the jury to make sure they hadn’t read news articles about the case. He also ruled the defendants failed to object to the video in a timely manner, like when it was being played in court.

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It’s not atypical for defendants to try and have a case tossed at various points along a trial. The defendants in this case, which includes the National Association of Realtors and Keller Williams, have 1.78 billion reasons to want the case dismissed.

Sitzer/Burnett is the first of two major class-action lawsuits centered on broker commissions to go to trial. The lawsuits pertain to NAR’s policy requiring listing brokers to offer buyers’ agents compensation in listings on Realtor-controlled MLSs, which the plaintiffs argue violate antitrust  statutes and inflate costs.

— Holden Walter-Warner