BAM Key Details:

  • An injunction in the Sitzer/Burnett commission lawsuit is not expected until spring 2024, allowing time for post-trial motions and a final judgment. 
  • Meanwhile, the National Association of Realtors (NAR) and Keller Williams are bulking up their lawyer bench in preparation for their appeal. 

The latest news on the Sitzer/Burnett trial is what you might expect: the timeline for post-trial motions and who’s hiring which lawyers in preparation for the appeals process.

As for post-trial motions, both parties have settled on a timeline that delays the final judgment until spring 2024. 

Here’s what we know so far. 

The post-trial motions timeline

Per the court order filed on Tuesday, any post-trial motions on behalf of the defendants must be submitted by January 8, 2024. From there, the plaintiffs have about a month and a half to file oppositions, which are due by March 18th. 

After all the post-trial motions are resolved, another 30-day waiting period will pass before a judgment is executed. So, the industry may be waiting until April or even May of 2024 before we know the extent of the injunctive relief for Sitzer/Burnett

Soon after that judgment is made, the defendants will make their move to appeal.

New lawyers for the defense

Keller Williams

KW has hired Paul D. Clement of Clement & Murphy, who served between 2005 and 2008 as a U.S. solicitor general and has argued over 100 cases before the U.S. Supreme Court. 

Widely recognized as one of the top appellate attorneys in the United States, Clement’s extensive experience representing clients across diverse, high-profile cases of national significance is unparalleled and well-matched for this high-stakes appeals process.

Darryl Frost

Keller Williams spokesperson

Clement reportedly said he is “delighted” to represent Keller Williams in its “high-stakes appeal” of the Sitzer/Burnett verdict. 

The verdict here raises serious legal issues and poses a threat to a wide range of businesses by converting practices enshrined in state law into per se antitrust violations.

Paul D. Clement

Former U.S. solicitor general

National Association of Realtors

NAR, for its part, has hired Gregory G. Garre, partner at Latham & Watkins and global chair of its Supreme Court & Appellate Practice. Garre served under Clement as a principal deputy solicitor general and succeeded him as U.S. solicitor general, serving from 2008 to 2009. He’s argued 48 cases before the U.S. Supreme Court and is currently defending Purdue Pharma’s bankruptcy settlement before the court. 

Garre is working with Roman Martinez (also a partner at Latham & Watkins), who has argued 13 cases before the Supreme Court, along with dozens of appeals in various circuits, including the Eight Circuit. 

In addition to these two, NAR has also retained Quinn Emanuel for its appeal. With over 1,000 attorneys, the firm says it’s the largest in the world devoted exclusively to business litigation and arbitration. 

NAR’s chief legal officer, Katie Johnson, has made it clear the organization plans to argue for a “complete reversal” of the verdict. 

We are navigating the post-trial verdict and hiring the best appellate counsel who can bring our arguments to the Eighth Circuit and convince them to overturn the district court

Katie Johnson

NAR Chief Legal Officer

Home Services of America

HomeServices of America has retained a multinational law firm—Gibson, Dunn & Crutcher—for its appeal. Theodore J. Boutros, Jr. will serve as lead counsel for HomeServices and its subsidiaries. 

According to his website, Boutrous has argued hundreds of appeals, including before the Supreme Court, and has “successfully persuaded courts to overturn some of the largest jury verdicts and class actions in history.” 

Rounding out the appellate team from Gibson, Dunn & Crutcher for Home Services are— 

  • Former federal trial and appellate judge Gregg J. Costa
  • Antitrust partners Cynthia Richman and Christopher D. Dusseault
  • Antitrust litigation associates Julian Wolfe Kleinbrodt and Harry R. S. Philips, and
  • Litigation associate Samuel Dawson Adkisson

Anywhere, despite its proposed settlement in Sitzer/Burnett, has hired Aaron D. Van Oort and Kevin P. Wagner, both partners of Faegre Drinker. According to his website, Van Oort “has argued more than 50 appeals and has won victories for clients as both appellee and appellant, including winning reversals of adverse jury verdicts in both federal and state courts.”

So, clearly, the defendants have done their research on appeals representation. No word yet on whether any of the attorneys who argued for the defense during the Sitzer/Burnett trial will make an appearance. 

Ketchmark & McCreight is also assembling a team

Meanwhile, lead counsel for the plaintiffs, Michael Ketchmark, announced his firm (Ketchmark & McCreight) is also assembling a team of appellate attorneys, whose identities he will divulge once the team is in place. 

We will be ready for the appeal.

Michael Ketchmark

Lead counsel for the plaintiffs

Meanwhile, last Tuesday, the district court granted a joint motion from both parties to vacate the “clerk’s judgment,” i.e., the court clerk’s recording of the jury verdict, so the plaintiffs can request their own entry of judgment, paving the way for post-trial motions from both sides. 

Any appeal would come after post-trial motions and the final judgment. But before any defendant can appeal, they’ll have to post a supersedeas bond (appeal/surety bond) of a specified amount (yet to be determined) as a guarantee of their ability to pay the plaintiffs should the appeal not go their way. 

Asked to comment on the court’s granting of the joint motion, Darryl Front, Keller Williams’ spokesperson, told Inman:

As a takeaway, the most important thing for agents to do is focus on delivering and communicating their value proposition. Commissions have always been negotiable — nothing has changed.

Darryl Frost

Keller Williams spokesperson

Stay tuned for more and bookmark the BAM Lawsuit Watch to stay informed of all the latest developments on lawsuits against the real estate industry.