BAM Key Details:

  • On Monday, October 30, Day 11 of the Sitzer/Burnett trial, attorneys for the defense (particularly Keller Williams) rested their case after a brief testimony from Jen Davis, Keller Williams’ vice president of MAPS Coaching.
  • Attorneys for the plaintiffs and defendants made their closing arguments Monday afternoon to sway the jury before leaving the verdict in their hands. 

Attorneys for the plaintiffs and defendants made their closing arguments Monday afternoon after a brief testimony from Jen Davis, Keller Williams’ vice president of MAPS Coaching. 

Michael Ketchmark, lead counsel for the plaintiffs, gave a confident closing that morning, proclaiming a “day of accountability” for real estate and accusing the defense of providing “plenty of misdirection” that had ultimately made the jury’s job “incredibly easy.” 

For the defense, attorneys Ethan Glass made his closing for the National Association of Realtors, Robert MacGill for HomeServices of America, and Timothy Ray for Keller Williams. 

Ketchmark then returned for a dramatic (and loud) rebuttal, according to Inman reports

Now that the attorneys have had their say, the jury will convene to reach a verdict. 

Read on for the highlights. 

Ethan Glass closes for NAR

For this case, the plaintiffs have to prove by a preponderance of evidence that the defendants were involved in an active conspiracy to impose the cooperative compensation rule, thereby requiring sellers to pay the buyer agent’s commission. 

Ethan Glass, in his closing, said it was up to the jury to decide whether “the 1.6 million people who are NAR” colluded with the corporate defendants to “follow and enforce” the cooperative compensation rule. 

At one point, he said, “This case is an insult to their hard work,” noting that some of those Realtors are Missourians. 

Glass argued the plaintiffs had failed to provide a single piece of evidence—no documents or testimony—of any conspiracy among the defendants to impose a cooperative compensation rule. In fact, as he said, none of the defendants’ witnesses had even heard of the rule before this lawsuit.

He alleged Michael Ketchmark, lead counsel for the plaintiffs, “kept changing the definition of ‘conspiracy,’” even going so far as to say the rule itself is the conspiracy. But the question the jury has to answer is whether there is an actual conspiracy to “follow and enforce” the rule.

It’s not illegal for trade associations to make rules and there’s no evidence that NAR enforces the rule in Missouri… The plaintiffs’ lawyer has utterly failed to prove that a conspiracy to follow and enforce the rule even exists.

Ethan Glass

Lead counsel for NAR

As Glass pointed out, NAR specifically warns its members against inflating or fixing commissions, telling them, when they set commissions, to do so independently, without giving anyone cause to believe they’re colluding with another agent to inflate costs for the consumer.

That is the opposite of a conspiracy.

Ethan Glass

Lead counsel for NAR

Glass also told the jury, against Ketchmark’s objection, that in Missouri, a seller may legally agree that their (listing) agent can offer the buyer agent a share of the total commission. 

He also noted Ketchmark had kept changing the numbers when accusing the plaintiffs of fixing commissions—using 6%, 5%, 3% and 2.7%. And while the figures were different partly because they sometimes referred to the share offered to the buyer agent and sometimes to the total commission paid by the seller, there was enough variance to instill doubt in Ketchmark’s allegation of a fixed rate. 

Glass also pointed out that during the seven-year period relevant to the lawsuit, sellers offered commissions other than 3% in the four subject MLSs roughly 110,000 times. 

Robert MacGill closes for HomeServices of America

Robert MacGill, lead attorney for HomeServices of America, started his closing with a reminder that people, including corporations, are equal before the law. 

He also pointed out that “no one invented the practice of cooperative compensation” and that the practice had originally begun in the late 1800s. 

Citing defendants’ expert witness, Dr. Lawrence Wu, MacGill said the rule “simplifies transactions and creates efficiency,” adding— 

The rule helps sellers get the highest market price for their home.

Robert MacGill

Defense attorney for HomeServices of America

He continued by saying the plaintiffs had not provided any evidence of a conspiracy—not “a single document” proving the defendants had communicated about the cooperative compensation rule or about commissions. 

Recalling the testimony of plaintiffs’ expert Dr. Craig Schulman, who said he could infer a conspiracy from data showing commission clustering in the four subject MLS markets he’d studied for the case, MacGill argued, “No, he can’t.” 

Again citing Dr. Wu, MacGill argued the cooperative compensation rule did not impose any restrictions on the choices of home sellers or buyers. Where Schulman saw a conspiracy in the commission clustering, MacGill saw “competition at work.” It was the market, not corporate collusion, that set the price. It was what consumers were willing to pay. 

He also pointed out that Dr. Schulman had looked at offered commission rates rather than the actual paid rates, which, according to Dr. Wu, differed from 23% to 33% of the time. 

MacGill referred to witnesses who had testified that HomeServices, BHH, and HSF are not affiliated with NAR and never required their agents to join NAR, local Realtor associations or MLSs, adding that brokerages and subsidiaries that do “make their own decisions.” 

In regard to the damages claimed by the plaintiffs, MacGill argued no one, including the entire plaintiff class of 500,000 home sellers, had been injured by the cooperative compensation rule. He referred to the named plaintiffs who had taken the stand and had benefited from the cooperative compensation rule as buyers.  

They got exactly what they contracted for and in addition they also benefited from the practice of cooperative compensation as buyers.

Robert MacGill

Defense attorney for HomeServices of America

MacGill ended his address by asking the jury to choose their verdict on “evidence, not bias.”

Timothy Ray closes for Keller Williams

Finally, Timothy Ray, lead counsel for Keller Williams, opened his closing argument by saying, “None of what you’ve heard about Keller Williams is true…Not a single thing.” 

Ray noted that around 180,000 agents were affiliated with Keller Wiliams, saying, “We can’t control them.” 

He pointed out that what he says (in court) and what Ketchmark says is “not evidence,” adding that he found it “odd” that the plaintiffs’ counsel had not called a single Realtor to the stand to testify as to whether they joined NAR because of Keller Williams’ policy manual, which requires NAR membership but offers an exemption. 

More on that in a bit. 

At one point, Ray presented a photo of a crowd with their umbrellas up to show an example of group behavior that can also be a product of independent choices. 

Just because everyone has an umbrella does not mean they all agreed to do so. It may just mean it’s raining outside.

Timothy Ray

Lead counsel for Keller Williams

He then accused plaintiffs’ lead attorney, Michael Ketchmark, of telling “half-truths” and “taking pieces of what someone said [and] twisting it around.” 

He wrapped up his argument by asking the jury to award “zero damages” to the plaintiffs. 

Michael Ketchmark’s rebuttal

Here we go, folks. Cue the spotlight.

Michael Ketchmark, lead attorney for the plaintiffs, had the last word with his rebuttal. And he milked it for all it was worth. 

After defense counsel had delivered their closing arguments, Ketchmark launched into an impassioned rebuttal with his 27-minute counterargument. 

He started by saying he’d been waiting “for five years” to hear why the cooperative compensation rule is mandatory—why sellers should be compelled to pay commissions for both agents. His conclusion? 

They haven’t explained it to you.

Michael Ketchmark

Lead counsel for the plaintiffs

He brought up Ray’s point that he hadn’t called any agents to testify and countered, “They’re the ones with the agents! Where are their agents? Where are their people?” He added that the reason he hadn’t called any agents to the stand was because “we are not blaming the agents!”

Did I ever say at one time that 1.6 million Realtors are part of this conspiracy? …It’s a deliberate attempt to confuse you.

Michael Ketchmark

Lead counsel for the plaintiffs

He then scoffed at Glass’s suggestion that the plaintiffs are trying to take $1.78 billion away from Missourians who are real estate agents when the plaintiffs, in claiming that amount, are trying to reimburse 500,000 Missourians who are home sellers. 

For some reason, he pointed out that, while NAR does not make any money on agent commissions (as Glass had noted earlier), NAR does get $240 million in annual dues from its 1.6 million members. 

Never mind that this fact is completely irrelevant to this case and in no way supports the plaintiffs’ claim of a conspiracy. NAR dues are a topic for a whole other discussion.

Ketchmark, however, seemed to feel he’d made an important point when he cried out— 

We all know what’s going on! We all know why they’re doing it!

Michael Ketchmark

Lead counsel for the plaintiffs

Ketchmark then pushed back against Ray’s accusation that he was telling the jury “half-truths” and taking other people’s words out of context to mislead the audience. At this point, Ketchmark was audibly choking up as he said— 

I would never do that. Do not stand here and attack my integrity in front of these people like that! You know why that happens? It’s because they know the answers to these questions.

Michael Ketchmark

Lead counsel for the plaintiffs

Regarding Dr. Wu’s testimony (quoted by MacGill), Ketchmark noted that Wu had admitted to being helped with his presentation by the defendants’ lawyers, adding that while the defense counsel “want the jury to believe that that happens all the time,” he had asked the plaintiffs’ expert, Dr. Schulman, if his legal team had counseled him on his testimony. Schulman had answered in the negative. 

On the issue of sellers having choices, Ketchmark argued that every one of the homeowners in the plaintiff class who had testified had been forced to pay the buyer agent’s commission to have their home listed on the MLS, adding that the law says they (the defendants) can’t do that.

On the lack of communication between the corporate defendants about commissions, Ketchmark pointed to the MLS rules, implying that cooperative compensation is de facto mandatory, with or without explicit communication agreeing to the rule and to its enforcement.

You don’t have to exchange emails. It’s right there. Hidden from the public.

Michael Ketchmark

Lead counsel for the plaintiffs

And in regards to home sellers signing contracts requiring them to pay buyer agent commissions, Ketchmark added, “You’re not allowed to fix prices and then say, ‘Well you paid the fixed price,’” leaving the jury to infer that the plaintiffs were incapable of advocating for themselves and negotiating terms. 

When it comes down to it, the plaintiffs’ feelings of regret and their readiness to blame the agents do not amount to a “preponderance of evidence” that anyone was forced to sign on the dotted line. 

Ketchmark wrapped up his rebuttal by dehumanizing the defendants as “corporate titans” who “are waiting to hear what you have to say” and asking the jury to “hold them accountable.”

Press the reset button on the housing market. Return the homes to the homeowners…They’ve gotten away with it for so long.

Michael Ketchmark

Lead counsel for the plaintiffs

He then addressed the named plaintiffs, four of whom were sitting in the gallery, asking them to stand up. 

They’re the voices of the forgotten people… Our system doesn’t have to forget you. Our system can hold these corporations accountable. Use your voice.

Michael Ketchmark

Lead counsel for the plaintiffs

And…cut! 

Stay tuned for the jury’s verdict.