The COURT REPORT is RISMedia’s weekly look at current and upcoming lawsuits, investigations and other legal developments around real estate.
“Mediation” talks begin in eXp sexual assault case
In a high-stakes lawsuit involving allegations of drugging, sexual assaults and coverups at mega-brokerage eXp, parties are sparring over the scheduling of a trial while also revealing for the first time that the brokerage is engaging in “mediation” talks.
In a lengthy filing late last week, eXp requested the judge push back a September 18 trial by 60 days based on “significant difficulty” coordinating depositions and discovery. The filing also revealed that parties “attended a mediation” back in January, with another session scheduled for next month.
The lawsuit involves accusations by multiple women that two eXp “influencers” (David Golden and Michael Bjorkman, since separated from the company) drugged and raped them at company-sponsored events as part of a long-running scheme to build their “downline” in the company’s multi-level revenue share program. The women further allege that eXp, specifically directed by founder Glenn Sanford, ignored complaints and protected Bjorkman and Golden.
Plaintiffs have also argued that eXp’s structure and recruitment incentives makes agents employees rather than independent contractors by some legal definitions, which could have further-reaching effects across the industry if a judge or jury agrees.
Golden, who is also a defendant in the case, is opposing the delay, telling the judge in a separate filing that he is embroiled in a dispute with his insurance provider over his legal costs, and if the trial is delayed he would potentially be “deprived of both a funded defense and the resources needed to litigate this case effectively.”
A trial in the case had already been delayed from an earlier set date of April 2025. The judge had not ruled on the latest request at press time.
NAR excoriates “confusing” MLS access lawsuit
Responding to plaintiffs who have sued the National Association of REALTORS® (NAR) and local associations over REALTOR® membership requirements for MLS access, lawyers representing the REALTOR® defendants characterized the latest filing from brokers as confusing, implausible and misunderstanding simple tenets of real estate and antitrust law as they ask a judge to throw the case out.
“Plaintiffs…misconstrue basic industry terms and concepts that are central to their claims (e.g., asserting all real estate licensees in Michigan are required to be association members),” NAR lawyers wrote in a filing last week. “Plaintiffs also do not plead a single element of an antitrust claim—they have not alleged competitive harm in any plausible product or geographic market, confusingly identifying a ‘product market’ in which Defendants, as service providers, do not participate.”
The lawsuit, originally filed last August in Michigan by two brokers and an agent, accuses their local MLS and REALTOR® associations along with NAR of conspiring to monopolize access to listing services in violation of federal antitrust statutes. The brokers claim they sought a way to access the MLS without joining all of the REALTOR® associations, at least partially based on the NAR class-action lawsuit settlement, which they argue devalues the MLS and REALTOR® membership more broadly.
NAR told the judge all these accusations are broadly insufficient to make a plausible antitrust claim, saying that plaintiffs continually mix up their definitions of relevant markets, fail to provide factual evidence of conspiracy claims and misrepresent the facts in other, potentially relevant cases.
A handful of other brokers have filed similar lawsuits with similar arguments around the country, though most of these brokers are self-represented, while the Michigan brokers are represented by a lawyer.
The judge had not yet ruled on NAR’s motion at press time.
Howard Hanna gets potential do-over in attempt to transfer case
Like a number of other brokerages, Howard Hanna has argued that it does not make sense for them to be facing a class-action lawsuit in a state where they conduct little or no business.
Arguing late last year to Judge Stephen R. Bough in the Western District of Missouri that Pennsylvania would be a more appropriate and practical venue, the company was ultimately denied—despite unusual persistence in pressing that request.
But after appealing that ruling, Howard Hanna appears to have another shot, as the Eighth Circuit—while declining to take up the appeal—directed Bough to reconsider his denial based on a specific precedent case, in which a party was granted a request to transfer.
Dave Gringer, a lawyer representing Howard Hanna, tells RISMedia the appeal was “very unusual and very rare,” but the company is “pleased with the result.” In court filings, Howard Hanna had noted that continuing the case in Missouri was both expensive and nonsensical, as the company is not even licensed to transact business in the state.
Separately, Howard Hanna had requested Bough recuse himself from the case based on previously reported political donations to his wife.
DOJ reiterates settlement objections, repudiates misrepresentation of Clear Cooperation position
In a supplemental brief filed in the Federal District to Massachusetts ahead of a hearing to preliminarily approve the settlement between MLS PIN and class-action seller plaintiffs, Department of Justice (DOJ) lawyers reiterated objections to the deal, while also pushing back at how some in the industry have characterized its position on Clear Cooperation Policy.
“Brokerage fees represent a substantial portion of the costs of making those transactions—costs that should be kept in check by unrestrained competition among brokers,” the DOJ wrote. “Yet, despite technological advances and shifts over time in how Americans buy and sell properties, real-estate broker commission rates in the United States and Massachusetts have barely budged from the 5% – 6% ‘standard’ rates for decades.”
In a footnote, the DOJ also called out “industry participants” who have described the DOJ’s interest in Clear Cooperation in a way that is “misleading and out of context,” seemingly referring to brokerage leaders like Compass’ Robert Reffkin who have characterized the DOJ as explicitly seeking to end Clear Cooperation Policy.
“The (DOJ Antitrust) Division has not taken a position that such policies standing alone (i.e., without mandated MLS publication of offers of compensation or exceptions benefitting primarily large brokerages) are anticompetitive,” the filing read.
NAR had previously agreed to provide information to the DOJ “related to the proposal, adoption and implementation of the Clear Cooperation Policy” by February 13 of this year.
Judge in offshoot buyer case rejects “moot” argument related to NAR settlement
Judge Wendy Beetlestone of the Eastern District of Pennsylvania has become the second federal judge to affirm the legal foundation of buyer-filed commission lawsuits, and appears to be the first to reject arguments that the NAR settlement makes lawsuits filed by homebuyers duplicative.
In a case targeting Howard Hanna, Beetlestone wrote last week that at this early stage in the litigation, plaintiffs can argue that essentially the same allegations regarding conspiracy and commission-fixing can be brought by buyers to collect damages.
“Plaintiffs have specifically pleaded that home sellers pass on their inflated broker fees to buyers by raising the prices of the homes they sell. If this allegation is taken as true—which it must be, at this stage—then the damages potentially recoverable by Plaintiffs would not be truly ‘duplicative’ of whatever damages home sellers may recover,” she wrote.
Beetlestone additionally noted the seller settlement agreements did not modify all the rules targeted by buyers, including those limiting lockbox access and governing modifications to commission offers. She further referenced the DOJ’s assertion that new policies enacted through the NAR settlement could still violate antitrust laws as a reason to allow plaintiffs to move forward with the lawsuit.
“For all these reasons, Hanna has not met its ‘formidable burden’ of showing that there is no longer a live controversy remaining between the parties,” Beetlestone wrote.
