Plaintiffs Wrap Up & NAR Begins Testimony: Day 6 of Sitzer/Burnett Trial

Week two of the Sitzer/Burnett trial has begun, with a few notable developments since last Friday, when four plaintiffs took the stand. 

Plaintiffs’ Final Witnesses

On Monday, the plaintiffs called their final witnesses to the stand, focusing on antitrust violations as they wrapped up their case. 

Attorneys for the plaintiffs aimed to convince the jury of the following:

• Leadership for the National Association of Realtors® (NAR) was alerted to concerns about antitrust violations but failed to investigate them. 
• Keller Williams was singled out for lacking institutional control related to violations of commission rules 

Read on for a quick summary of how the plaintiffs wrapped up their case:

• Linda O’Connor, former member of NAR’s Professional Standards Committee, sent an email to committee leaders in 2012 with her concerns about antitrust law violations. According to her testimony, the committee did not investigate those concerns. 
• Cliff Niersbach, who served as associate general counsel for NAR from 1975 to 2016, testified that NAR received dozens, if not hundreds, of suggestions, making it difficult to address each individual concern, but he acknowledged the legal team did not investigate O’Connor’s report. 
• Darrell King, who served as director of compliance at Keller Williams from 2006 to 2015, also testified, saying KW did not have an antitrust policy. It was later pointed out that such a policy existed for the agents. 
• Attorneys for the plaintiffs attempted to show a lack of institutional control at KW and a double standard when it came to following the rules (i.e., agents but not executives)

The Defense Begins Its Case

In the afternoon, attorneys for the National Association of Realtors® (NAR) called their first witnesses to the stand:

• Sharon Millett, former NAR President, testified about the cooperative compensation rule, which was issued in a report that recommended NAR change the rule in the early 1990s. The rule was changed in 1996. 
• Attorney Robert MacGill asked Judge Stephen R. Bough to rule in favor of HomeServices of America and its subsidiaries, BHH Affiliates and HSF Affiliates. He claimed that the plaintiffs failed to find evidence of any kind indicating the franchisor’s involvement in a conspiracy to keep commissions high.
• NAR CEO Bob Goldberg testified to end the afternoon, emphasizing NAR’s trade organization role and independence of state and local associations. He also stated that NAR does not instruct members on commission rates. 
• Goldberg also addressed the suggestion that NAR’s incentive in the alleged conspiracy was to maintain its dues revenue. He refuted this by explaining that NAR’s revenue is not commission-dependent, as they receive $150 in annual dues per member regardless of what the member charges or earns.

As the defense team presents its case this week, they will likely address the allegations of antitrust violations and argue that the plaintiffs have not succeeded in proving their claims—namely that the defendants are part of a conspiracy to fix commission rates.