At a recent hearing in the largest and most important pending Commission case, Judge Andrea R. Wood said she would almost certainly rule on the defendants' motion to abandon the case and consolidate the class action. He said he also agreed. Another even larger lawsuit involving the same plaintiffs.
The two lawsuits, both known as Baton, appear to be consolidating, with virtually all the major securities firms named as defendants and the plaintiffs attempting to certify a national class dating back to 1996.
“Even if the lawsuits are separate, I would consider filing similar lawsuits if the parties think it makes sense given that they involve the same plaintiffs,” Wood said on a conference call this afternoon. We are prepared to put it on the schedule.”
Wood also said he expects to receive orders and comments on pending motions to dismiss the case by the end of the week, indicating strongly that he intends to allow the plaintiffs to continue their claims.
“The case will move forward,” Wood said.
The Batton lawsuit (previously known as the Leader lawsuit) was dismissed by Wood after the lead plaintiff was found to lack standing under state law, but was refiled in 2022. The second lawsuit was filed shortly after the Barnett decision, with defendants in both lawsuits. In the lawsuit, he does not oppose merging the two.
What is very important is that the plaintiff in this case recently returned homebuyer than that seller, They allege that the National Association of REALTORS® (NAR) and other large intermediaries conspired to create rules that forced them to pay high fees in violation of federal antitrust laws.
The first Baton suit names the same defendants as Barnett: NAR, HomeServices, Anywhere, Keller Williams, and RE/MAX. The second Baton lawsuit makes similar claims and adds Compass, eXp, Redfin, Weichert, United Real Estate, Howard Hanna Real Estate Services, and Douglas Elliman.
Anywhere and RE/MAX claim they are protected from many of the counterfeit seller lawsuits that have occurred since Burnett, but the settlement they agreed to could protect them from buyer lawsuits like Batton. It is less clear whether this also applies.
If Wood agrees to certify a national class of consumers, damages from the two Baton lawsuits combined could easily reach hundreds of billions of dollars.
It could take time to determine whether the lawsuit reaches that stage. At the hearing, Wood granted a significant extension of time to respond to an unpublished judgment and opinion on the defendants' motion to dismiss the case. He also scheduled an in-person meeting for the end of February for the parties to agree on a more complete schedule for discovery and proceedings prior to class certification.
Randall Ewing, an attorney for the plaintiffs, said he doesn't necessarily oppose consolidation of the cases, but that the broker defendants in the second baton lawsuit raise “unique” issues and that discovery would be “substantial.” He said he was concerned about the delay.
If the two lawsuits are merged on the same timeline as the original case, the Button case could become the next important case to go to trial after the Mail case. Wood is also overseeing the case, which has already been graded and could go to trial by the end of the year.
Moehrl was brought by recent home sellers rather than buyers, dwarfing Barnett in scope and potential damages.
At today's meeting, Wood also said that NAR attorney Ethan Glass “flagged” a multidistrict federal commission proceeding that could potentially consolidate dozens of commission class actions. Also mentioned.
Plaintiffs in a separate class action lawsuit are asking that Judge Stephen Baugh, the judge who supervised Mr. Barnett, oversee all of these cases, but the NAR says that Mr. Wood himself should oversee all cases focused on the commission. I'm asking you to take over.
“We wanted you to know that NAR is involved in your case,” Glass said.
As for further consolidation, Wood said he would cross that bridge if he felt like it, and acknowledged there was “always a chance” that the cases could be further consolidated.
“My intent and expectation here, of course, is to just move forward with management of the case at hand,” Wood told Glass. “While we wait to see if there is an order from (the multiple district frame), everything will proceed accordingly.”
