In a recent hearing for one of the largest and most important pending commission cases, Judge Andrea R. Wood said she was almost certainly going to rule against defendants’ motion to throw out the case, and also agreed to consolidate the class-action suit with another, even larger case involving the same plaintiffs.
The two cases, both known as Batton, will seemingly now combine, with virtually every large brokerage as defendants, and plaintiffs attempting to certify a national class going all the way back to 1996.
“I would be prepared to put the cases on a similar timeline,” Wood explained during a telephone conference this afternoon, “even though they are separate—if the parties think that would make sense, given that the same plaintiffs are involved.”
Wood also said she expected to have her order and opinion on pending motions to dismiss the case by the end of the week, and hinted strongly that she would be allowing the plaintiffs to continue with their claims.
“The case will be proceeding forward, I expect,” Wood said.
The Batton case—previously known as Leeder—had been dismissed by Wood after a lead plaintiff was found not to have standing based on state laws, but was refiled in 2022. The second case was filed shortly after the Burnett verdict, and defendants in both cases have not opposed consolidating the two.
Very importantly, the plaintiffs in this case are recent homebuyers rather than sellers, who allege that the National Association of REALTORS® (NAR) and other big brokerages conspired to create rules that caused them to pay inflated costs, in violation of federal antitrust laws.
The first Batton case named the same defendants as Burnett: NAR, HomeServices, Anywhere, Keller Williams and RE/MAX. The second Batton case, which made identical claims, added Compass, eXp, Redfin, Weichert, United Real Estate, Howard Hanna Real Estate Services and Douglas Elliman.
Although Anywhere and RE/MAX have argued that they are protected from the many seller-side copycat lawsuits that have popped up since Burnett, it is much less clear whether the settlements they agreed to will apply to buyer-side suits like Batton.
All together, the two Batton suits could easily push damages into the hundreds of billions, if Wood agrees to certify a nationwide class of consumers.
Whether the cases will reach that point might take some time to determine. At the hearing, Wood granted defendants a significant time extension to reply to her as-yet unreleased ruling and opinion on their motion to dismiss the case. She also scheduled an in-person conference for the end of February for parties to agree on a more complete timeline around discovery and proceedings ahead of class certification.
Randall Ewing, a lawyer for the plaintiffs, said he did not oppose consolidating the cases necessarily, but worried that the brokerage defendants in the second Batton case might bring up “unique” issues that would delay discovery for “a substantial period of time.”
If the two cases are consolidated on the same timeline as the original, Batton could end up being the next major case to head to trial after Moehrl. Wood is also overseeing that case, which has already certified a class and could see a trial by the end of the year.
Moehrl was filed by recent homesellers, rather than buyers, and dwarfs Burnett in scope and potential damages.
At the conference today, Wood also noted that NAR attorney Ethan Glass had “flagged” a proceeding before a multi-district federal panel that could potentially consolidate dozens of commission class-actions.
Plaintiffs in separate class-action lawsuits requested all these cases be overseen by Judge Stephen Bough, the judge who oversaw Burnett, while NAR is requesting that Wood herself be the one to take over all the commission-focused lawsuits.
“We wanted to make sure you were aware of what NAR is saying…as it pertains to your cases,” Glass said.
Wood said that as far as further consolidation, she would cross that bridge when she came to it, admitting it was “always a possibility” that proceedings could further combine.
“My intent and expectation here is of course to just proceed with managing the cases that are in front of me,” Wood told Glass. “While we’re waiting to see if there’s going to be an order (from the multidistrict pane), everything will proceed accordingly.”