In the wake of a significant but expected ruling by a federal judge allowing class-action claims by recent homebuyers against real estate incumbents to go forward, both parties are laying out diverging roadmaps for a case that could prove much more significant than any of the many commission cases filed in the past four months.
A joint status report filed late last week by attorneys representing a national class of recent buyers, as well as those representing the National Association of REALTORS® (NAR) and several large corporate brokerages, notably affirmed that there have been no settlement discussions in the case (known as Batton), and sparred over scheduling, discovery and trial length.
Defendants in the case are also seeking a short pause in all proceedings ahead of a decision by a judicial panel on whether the case will be consolidated with several other similar class-action suits, with a decision on that expected in late March or early April.
“Other plaintiffs that are…seeking consolidation in the (judicial panel case) recognize the benefits to judicial economy and efficient discovery for the parties that would result from a stay to allow for resolution,” the defendants wrote.
Based on the schedules requested by both parties, Batton is still a long way off from a potential jury trial. The plaintiffs put forward a calendar which would not see a jury seated until late spring or even summer 2026, while the defendants left open the possibility of pushing into 2027.
This case, while flying somewhat under the radar, continues to present a more significant and unique threat compared to the many other commission-related cases currently percolating across the country.
Originally dismissed back in 2022 by Judge Andrea R. Wood in the federal district court of Northern Illinois based on how federal antitrust laws treat “indirect purchasers” (which Wood ruled includes homebuyers), the case was refiled with the same claims but utilizing state laws across 35 jurisdictions. Wood ruled just last week that most of the claims can go forward.
Because the case involves buyers rather than sellers, settlements agreed to by Keller Williams, RE/MAX and Anywhere may not protect them for this suit and other similar claims, even though the buyers are mostly targeting the same NAR rules and alleged price-fixing behavior—specifically, that big real estate companies conspired with the REALTOR® to enforce mandatory offers of compensation.
The case also massively expands the scope of Burnett and other commission-focused litigation, seeking to certify a nationwide class that would include everyone who has purchased a home since 1996.
According to the filing, parties in the case continue to disagree on many pre-trial issues in the complex case. Specifically, defendants are objecting to the plaintiffs’ request for “wholesale” access to discovery materials from other commission cases filed by sellers, including one case also overseen by Wood (known as Moehrl), and material also requested by the Department of Justice in their dormant investigation into industry rules and practices.
“While the Defendants believe that the discovery in those cases should be leveraged to
minimize or eliminate the need for additional discovery in this case, that does not mean every document produced in those cases should be cross-produced here,” lawyers for the defendants argued.
For their part, plaintiffs offered a short three-week turnaround for defendants to produce all these documents, and also pushed back on the temporary pause to await a consolidation ruling.
“A (pause) needlessly delays Plaintiffs’ claims while Defendants’ anticompetitive conduct is ongoing,” they wrote. “Defendants’ motion for a stay simply seeks to delay the inevitable.”
The back and forth on consolidation also underpins a wider disagreement on bringing the many similar but separately filed Burnett copycat cases together under one judge, with brokerages taking different stances on which cases to consolidate, and where.
In this most recent filing, NAR and the other big brokerages pointed out that lawyers for the plaintiffs have supported consolidation, but simultaneously are pushing for the case to move forward under Judge Wood, a position they called “inconsistent.”
They also disagreed on the potential trial length, with plaintiffs estimating three weeks, and defendants saying it was too early to estimate a time period.
Both sides also noted briefly that there is no imminent push for settlement in the case.
“The Parties have not yet engaged in settlement discussions,” they said, “but are open to discussing settlement as the case progresses. The Parties do not request a settlement conference at this time.”
