Appeals Of Nar Settlement Approval Continue To Pile Up

Appeals of the final approval of the  National Association of Realtors‘ (NAR) commission lawsuit settlement agreement  continue to pile up. On Monday, copycat suit plaintiff and settlement objector Hao Zhe Wang filed an appeal, while NAR members Rosalie Doyle, Jessica Winters, and John Guerra filed their appeal on Tuesday.

Both appeals were filed with the Eighth Circuit Court of Appeals.

In his filing, Wang noted that he is appealing the final approval of NAR’s settlement, the approval of the settlements of the brokerages and MLSs that opted-in to NAR’s settlement, as well as his denied motion for reconsideration.

Wang filed his motion for reconsideration in early December, just days after NAR’s settlement was granted final approval. Judge Stephen R. Bough, who is overseeing the Sitzer/Burnett suit, denied his motion a day later. In the motion, Wang had requested that Bough reconsider his final approval of the settlement, claiming that at the final approval hearing the class counsel offered no details on “their enforcement effort of the earlier settlements and gave no reassurance about their future enforcement in the courtroom either.”

In a court docket entry denying the motion, Judge Bough wrote that motions for reconsideration “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence,” and that based on this, the motion is “not warranted.”

Doyle, Winters and Guerra are also appealing the final approval of NAR’s settlement, but they have also appealed the preliminary approval of the settlement and Judge Bough’s denial of their motion to intervene.

The three NAR members filed their motion to intervene and stay the suit just four days prior to the final approval hearing.

The basis of the proposed intervention was the implementation of the settlement business practice changes and that NAR will be using money collected via member dues to help pay for the settlements. In their filing, the proposed intervenors note that the plaintiffs in the suit “did not want to make the agents ‘the villains.’” Despite this, the proposed intervenors claim that the settlement “ultimately saddles the non-villain agents with a monetary payment irrespective of whether they were equal or zero market participants during the class period.”

“Due to NAR’s compulsory membership requirement to access the MLS, low-and-no-market participating Intervenors will be forced to pay an inequitable and disproportionate share of the total settlement from which they were not liable. Worse yet, all new and future members will be forced to pay in future years for actions they could not have possibly participated in,” the filing read.

Additionally, the intervenors claim that the settlement business practice, which requires listing brokers to remove offers of cooperative compensation from the MLS, disadvantages smaller brokerages.

“The Proposed Settlement Agreement, which was co-drafted by the largest brokerage firms without NAR member input — unwittingly or nefariously coerces sellers — to leverage the largest brokerage firms’ market reach when incentivizing buyer’s agents,” the filing states. “Thus, the Proposed Settlement hands the largest brokerage firms an enforced anticompetitive advantage over smaller listing brokerage firms because the proposed changes limit smaller brokerage firms from competing equally with the largest firms. As a result, smaller brokerage firms are injured due to the anticompetitive effects of the Proposed Settlement.”

In his denial of this motion, Judge Bough wrote on the court docket that the current class representatives are an adequate representation of the class and that “considering how far the litigation has progressed prior to this motion being filed, existing parties will be prejudiced by the delay in moving to intervene.”

These two appeals join those already filed by University of Buffalo law professor Tanya Monestier, the Burton suit plaintiffs as well as Robert Friedman, Monty March and the Spring Way Center .