NAR, brokerages push for new Sitzer/Burnett trial

The defendants in Sitzer/Burnett are adhering to a motto: if at first you don’t succeed, try, try again.

The National Association of Realtors, HomeServices of America and Keller Williams each filed motions looking to unravel the October ruling in the landmark case involving broker commissions, Inman reported. While the parties filed separate motions, they each support the efforts to undo the costly and landscape-changing ruling.

NAR and the brokerages want the court to enter a judgment in their favor, which would contradict the jury’s decision in the case. The defendants’ other requests include a new trial and the decertification of the homeseller class of plaintiffs.

In its motion, attorneys for NAR said the ruling featured “an excessive damage award and legal errors at trial,” among other complaints. The defendants also claimed impropriety on the part of plaintiffs’ counsel and legal errors in jury instructions.

Other arguments put forth by the defendants include whether the threshold was reached for a federal antitrust claim to be brought, claiming there was no evidence of conspiracy and that injury and damages weren’t proven at trial.

Michael Ketchmark, the plaintiffs’ lead counsel, didn’t appear too bothered by the defendants’ motions, expecting rulings in the plaintiffs’ favor on the motions and on appeal.

“They just have no basis for challenging us,” Ketchmark told Inman.

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The landmark lawsuit took aim at NAR’s Clear Cooperation Rule, which requires listing brokers to offer compensation to buyer brokers for a listing to be submitted to a Realtor-affiliated multiple listing service. The trade group and the franchisors were found liable of collusion and antitrust violations that inflate seller costs.

The jury in their decision awarded plaintiffs $1.8 billion in damages, which could be trebled to $5.4 billion. Copycat lawsuits have arisen across the country in the wake of the Halloween decision in Sitzer/Burnett.

The plaintiffs have until Feb. 26 to file oppositions to the post-trial motions, after which the defendants will have March 18 to respond.

— Holden Walter-Warner