With commission-focused lawsuits filed by recent homesellers seemingly headed toward resolution through a patchwork of settlement agreements, the real estate industry is now pivoting to face another threat—allegations from homebuyers that companies conspired on rules that inflated commissions and harmed them.
In the largest and most recent lawsuit filed by buyers—known as Batton—several big brokerages fired their first salvo in response to the initial complaint, seeking to have the lawsuit thrown out on technical grounds as well as pushing back at the foundation of the lawsuit, relying on many of the same arguments used unsuccessfully in the seller lawsuits.
“Plaintiffs have not plausibly alleged any facts to suggest that the conduct that forms the basis of their antitrust claims was the product of any agreement between Defendants and the National Association of REALTORS® (NAR),” reads the court filing, submitted jointly by Compass, eXp, Redfin, Weichert, United Real Estate and Douglas Elliman. “
“Plaintiffs offer only conclusory allegations that there was an agreement, which do not suffice,” the filing continues. “Being ‘subject to a variety of rules promulgated by trade organizations’ is not the same as an agreement among competing real estate brokers to reduce price competition.”
But the brokerages also delved into a more novel set of arguments, focused on the state claims and statutes of limitations, which could potentially provide a different avenue to have the lawsuit dismissed, and serve as a potentially more potent defense as the case moves forward.
Plaintiffs’ claims are based on an alleged conspiracy concerning NAR rules that have been in place since 1996. Plaintiffs filed this action twenty-seven years later on November 2, 2023. None of Plaintiffs’ claims have a twenty-seven-year statute of limitations,” the defendants wrote.
These filings mark a new focus for the legal landscape in real estate, with the industry now moving to confront pressures and challenges beyond Burnett and its copycats. With hopes that NAR’s settlement will close the book on seller lawsuits, attention will now turn to cases like Batton, which are not covered by any settlement agreements proposed so far.
Legal structures
The Batton suit is based on very similar allegations as Burnett and the other seller suits—that NAR conspired with big brokerages on rules like the “participation rule,” requiring offers of compensation to buyers, that allegedly inflated commissions and harmed consumers. Many of those rules have since been withdrawn, modified or reinterpreted due to the seller suits, but the homebuyers are still seeking damages for almost three decades in which those rules were in place.
It is also made up of a loose joining of two separately filed lawsuits—one that named the same defendants as Burnett back in 2020, and a second that added several other large brokerages in the wake of the $1.8 billion verdict back in October.
But Batton also rests on a very different legal foundation, relying on a hodge-podge of state antitrust laws and consumer protection statutes, rather than the federal laws successfully leveraged by sellers. Defendants in this case are aiming to use that fact to have the case thrown out, or at least undermine plaintiffs’ attempts to certify a class, which could very well steer the buyer cases down a different path than Burnett and the seller cases.
“Plaintiffs’ Damages Class lumps together three materially different theories—antitrust, consumer protection and unjust enrichment—which employ varying statutes of limitations, allow for the application of various tolling theories, and require proof of different elements to establish a violation,” defendants argued. “(T)he material differences between the state laws alleged would not meet the (legal) standards and would result in a ‘logistical and procedural nightmare.’”
Focusing on these issues could prove more fruitful for defendants in this case or others like it. HomeServices successfully argued last month that the court does not have jurisdiction over the company, and was subsequently dropped from the Batton suit (although Judge Andrea R. Wood left room for plaintiffs to refile or amend their complaint and potentially readd HomeServices as a defendant).
Wood also threw out claims in two states—Tennessee and Kansas—based on the specific laws of those states.
Conversely, though, Wood wrote in the same ruling that plaintiffs had plausibly alleged and coherently argued that their claims can leverage multiple state laws at once, and that they did not need to proactively prove that the suit was valid under every single state statute of limitations.
That ruling was in response to arguments made by a separate set of defendants (HomeServices, Keller Williams, RE/MAX, Anywhere and NAR) named in the earlier Batton case, and did not address all the specific points raised by the second group of defendants.
The second set of defendants honed in on issues with varying statutes of limitations across different states, despite the fact that Wood previously ruled that is not an issue at this point in the case. They also took a broader look, pointing out how burdensome it would be to litigate alleged misconduct or antitrust violations going back to 1996.
“This twenty-seven-year-old alleged conspiracy is a poster child for why statutes of limitations were created in the first place,” they wrote. “The passage of time in this case greatly prejudices Defendants’ ability to defend against Plaintiffs’ spurious accusations. Surely, with the lapse of almost three decades, important evidence has been lost and witnesses’ memories, provided that they are still living, have grown foggy.”
Plaintiffs have argued the statutes of limitations would not apply, or alternatively would not have been set in motion until much later, because NAR and the other defendants fraudulently concealed the harm they were allegedly perpetrating, citing a withdrawn NAR rule allowing buyer agents to advertise their services as free, among other actions.
Defendants named in the second Batton suit point out that plaintiffs waited three years after the initial lawsuit to accuse them of the same conspiracy, and cannot reasonably argue they were not aware of the alleged antitrust violations that had harmed them during that intervening time.
Defendants also pushed back adamantly against the assertion that anyone had sought to conceal the rules or actions that formed the alleged conspiracy, pointing out that the NAR rules being targeted are not a secret, and citing various media reports and investigations that have challenged those policies—some of which were cited by the plaintiffs in their complaint.
“(T)he Complaint itself establishes that the very issues that Plaintiffs contend were concealed or hidden were publicly available via NAR Rules and the subject of numerous publications dating back to at least 2005,” the defendants say.
Batton is still a long way from trial, with the plaintiffs requesting a jury be seated sometime in the summer of 2026, and defendants pushing for a delay into 2027. It is not clear when Wood will rule on these latest motions, though she has previously said the addition of the second Batton case will not delay the overall progress of the case.
