“If the motion for final approval of the Barnett Settlement is granted following the Fairness Hearing in November 2024, all individual and putative class claims against WPML in this matter will be waived, unless Plaintiffs and Class Members timely opt out of the Barnett Settlement,” the motion states.
The MLS Defendants argue that granting a stay of the lawsuit “will not prejudice Plaintiffs because the motion to dismiss is pending and the litigation is in its early stages, and they recognize that their claims against WPML will soon be resolved once the Barnett Court grants final approval of the settlement.”
Later that day, the plaintiffs in the lawsuit fought back. In their answer to the motion, they argued that their primary reasons for opposition were that the injunction “would cause significant prejudice to Plaintiffs, would not serve the efficiency of justice, and would not materially change West Penn MLS’s ultimate burden.”
In addition to challenging the West Penn MLS allegations, the plaintiffs also challenged the settlement agreements agreed to by NAR and the many brokerages named as defendants in the commission lawsuit, noting that the defendants and class counsel in the Sitzer/Barnett lawsuits agreed to “expand the plaintiffs class from home sellers who used a single MLS in Missouri to virtually all home sellers across the nation.”
“Accordingly, they advocate settling all claims of all parties injured by the nationwide antitrust conspiracy for 13% of the amount the jury finds to be damages from the conspiracy in a single state,” the Moratis plaintiffs wrote in their response. “Furthermore, the settlement will allow other parties involved in the same or similar antitrust conspiracies across the country to join the settlement and be released from all liability in their cases — some at no cost and some for a similarly low contribution.”
The response also details the changes in business practices outlined in NAR’s settlement agreement, including provisions such as prohibiting the display of cooperative compensation offers from MLSs and requiring buyer representation agreements.
With regard to removing compensation offers from the MLS, the response points out that this prohibition does not prevent compensation offers from being made elsewhere.
“As a result, a key element of the antitrust conspiracy will not be thwarted, but will simply be driven underground, making it more difficult to document or thwart through antitrust law in the future. U.S. Department of Justice“First, we find it insufficient,” the response said, quoting comments made by Justice Department lawyer Jessica Leal during a hearing in the Nosalek Commission lawsuit.
The plaintiffs allege that “West Penn MLS possesses a substantial documentary record as one of the key conspirators in this case and as a conduit through which agents and brokers shared material information that enabled the antitrust conspiracy.” This, the plaintiffs argue, is why the defendants’ motion to stay the lawsuit should not be granted.
It further stated that the suspension is indefinite, subject to the decision of Mr Bau, which is expected to be announced on November 26, 2024.
“How long this litigation will be unable to move forward in any meaningful way will depend on the ruling in Missouri, but any ruling will result in significant delays. The best case scenario would be a five-month stay until the Western District of Missouri decides whether to reject or approve the settlement, with no appeal thereafter,” the plaintiffs said in their response.
“That is unlikely. Instead, the matter will likely remain pending until the Eighth Circuit decides whether to uphold or overturn whatever the Western District of Missouri’s decision is. In a case of this magnitude, it would not be surprising if one or more parties sought leave to appeal. Delays could last years, during which time evidence will become stale, witnesses will forget important events, and members of the plaintiffs’ class will die while awaiting relief. Prejudice would be extreme.”
Meanwhile, the plaintiffs argue that unless the court puts the case on hold, West Penn MLS will suffer minimal prejudice.
“The balance of equity here is clear: granting an injunction would cause substantial harm to Plaintiffs and would provide little long-term benefit to West Penn MLS,” the motion states.
The case will ultimately be decided by U.S. District Judge William S. Stickman, who is presiding over the case in U.S. District Court in Pittsburgh. West Penn MLS did not respond to a request for comment.
