BAM Key Details:
- During a telephonic status hearing on Wednesday (11/29/23), Judge Andrea R. Wood said she would be able to try the Moehrl case in the fourth quarter of 2024.
- Ethan Glass, defense attorney for the National Association of REALTORS®, argued against setting a date, saying it’s “way premature.”
- Keller Williams attorney Timothy Ray argued for moving forward with Moehrl, saying the errors made in Sitzer/Burnett should not delay proceedings for other commission trials.
During a telephonic status hearing on Wednesday (November 29), U.S. District Judge Andrea R. Wood, speaking of the Moehrl vs. NAR, et al. commissions lawsuit, said she would “try the case likely in the fourth quarter of 2024.”
She announced this despite objections from NAR defense attorney Ethan Glass, who argued that setting a date for the trial was “way too premature.”
Richard Braun, attorney for the Moehrl plaintiffs’, was quick to dispute that. He had asked Wood to set a trial date, potentially for the final quarter of 2024, giving both parties time to prepare.
This case has now been pending for more than four and a half years, and we’re ready to move forward and towards trial.
Back in May (2023), Wood had indicated the trial would likely begin in the first half of 2024, so with Wednesday’s announcement, it sounds like the trial date will be pushed further.
Differences between Moehrl and Sitzer/Burnett
Defendants in Moehrl are the same as in Sitzer/Burnett, with one exception: Moehrl names an additional defendant: HomeServices-owned The Long & Foster Companies.
The plaintiffs argue that some NAR policies, specifically the one called the Cooperative Compensation Rule or the Participation Rule—requiring the listing broker to offer compensation to the buyer agent in order to submit a listing to a Realtor-affiliated MLS—violate the Sherman Antitrust Act by inflating costs for sellers.
Like Sitzer/Burnett, Moehrl has been certified as a class action. Moehrl is a much larger case, which means potentially millions of home sellers in 20 different MLS markets across the U.S. can ask to be reimbursed for an estimated $13.7 billion in damages. Tripling that figure would bring it up to $41.1 billion.
NAR argues against setting a trial date
Ethan Glass, defense attorney for the National Association of REALTORS® (NAR) argued that setting a trial date was “way premature,” saying the court had not even taken any requests to decide the case without going to trial (i.e., motions for summary judgment).
He also pointed out how the Sitzer/Burnett trial had been rescheduled several times before ultimately starting in October.
And we found ourselves in Kansas City preparing for trial multiple times, which was a very big resource drain.
The current deadline for submitting requests for a summary judgment is December 19 (2023). Glass asked Wood for a week or so to notify the court if NAR wanted an extension of that deadline, saying there may or may not be reasons to do so.
We are still analyzing what the consequences of the [Sitzer | Burnett] jury verdict are. There are legal questions that, at least the National Association of Realtors believes, that the court in Kansas City got wrong and it seems a waste of resources to go through and have this court make legal determinations when there may be an appellate court … that may be weighing in… I want to make sure that we are being efficient with the court’s resources and transparent with the court and candidly with the plaintiffs and other defendants on what the consequence of that is.
Asked by Wood to weigh in on Glass’s request, Braun said he didn’t see any reason for legal challenges in Sitzer/Burnett—which may not be resolved for another year or more—to impact the trial schedule for Moehrl.
We’re talking about setting a trial date potentially nine months out or a year out. The parties know the issues at stake here quite well [because of the Sitzer/Burnett case]. We just don’t think that there is any basis for further delay.
Errors in Sitzer/Burnett should not impact scheduling for Moehrl trial
In response to Braun’s statement, Timothy Ray, defense attorney for Keller Williams (KW), added that, given the “serious errors” in the Sitzer/Burnett trial—not to mention its uncertain final outcome—it should not serve as a “standard for how we should go forward in Moehrl.”
Ray expanded on some of the errors KW saw in the Sitzer/Burnett trial, putting special emphasis on the court’s refusal to allow the jury to know that a Missouri statute specifically allows listing brokers to offer cooperative compensation to buyer agents.
The court allowed the jury to believe that no homeseller would ever pay a buyer’s agent absent a conspiracy, once again, without sharing with the jury that this very practice is allowed by Missouri statute. Therefore, Keller Williams “would like for the Moehrl case to stand on its own consistent with the law” in its district and circuit.
Wood agreed with Ray’s argument, adding that she saw no reason to change the current briefing schedule for Moehrl.
I don’t think the fact that the other case has proceeded to trial and there are certain legal issues that will be challenged post-trial … affects what I need to do to keep the case moving here. It is a different case with some different issues, some overlapping issues, in a different circuit. So I tend to agree with Mr. Ray’s point that this case should stand on its own.
Woods added that it made sense to set a trial date as soon as “it’s reasonable to do so.” She asked for both parties to submit a joint status report by January 22, estimating the number of trial days and testimony hours they anticipate will be necessary. Those estimates should take into account that RE/MAX and Anywhere are unlikely to participate in the Moehrl trial if their settlement agreements receive final court approval.