While much stays unidentified in the wake of the decision in the Sitzer/Burnett commission claim case, the one certainty is that all 3 accuseds– National Association of Realtors, HomeServices of America and Keller Williams— all strategy to appeal.
” This matter is not near to being last. We will appeal the liability finding since we wait the truth that NAR guidelines serve the very best interests of customers, assistance market-driven rates and advance organization competitors,” Tracy Kasper, NAR’s president, composed in an e-mail to the trade group’s members Tuesday afternoon. “We stay positive we will eventually dominate.”
However appealing a civil claim isn’t as basic as it sounds.
In order to appeal a case, Federal Guideline Appellate Treatment needs the appellant to submit a bond or offer other security to make sure payment of the award harmed on appeal.
In the Sitzer/Burnett trial decision, the jury granted the complainants damages of almost $1.8 billion, which Judge Stephen Bough has the alternative to triple in his last judgment, implying that the accuseds may be on the hook for more than $5 billion.
According to Kasper’s e-mail to NAR members, the trade group does have the funds to publish bond, however market expert Rob Hahn isn’t so sure. In his Oct. 31 edition of his e-mail newsletter, NotoriousROB, Hahn took a deep dive into the accuseds’ financials.
In 2021, according to NAR’s Kind 990, it had $112 million in money and money equivalents on hand, in addition to $113 million in property and $333 million in openly traded securities. In all, this amounts to just $558 million.
Even with possessions from all of the commission claim’s accuseds, consisting of RE/MAX and Anywhere, who settled in September, Hahn approximates the accuseds will can be found in at around $2 billion in overall possessions, well except the possible $5 billion bond required.
Hahn kept in mind that in some cases a bond surety business will authorize a bond with less than 100% security, however he was doubtful that any business would put itself on the line for that high of a bond.
In addition to publishing bond, the accuseds should likewise think about that an appeal is not a retrial. According to the American Bar Association, an appeals court does not generally think about brand-new witnesses or brand-new proof, and the appeal is usually based upon arguments that there were mistakes in the trial’s treatment or in how the law was analyzed or used.
If the appeal is gotten by the appellate court, which when it comes to Sitzer/Burnett would be the Eighth Circuit of the U.S. Court of Appeals, all celebrations would need to submit briefs and after that return briefs.
” The court might and most likely would, in a case of this magnitude, set it for oral argument based upon the rundowns,” stated Paul Rogers, a teacher of law who concentrates on antitrust at Southern Methodist University’s Dedman School of Law.
According to Rogers, the panel of judges managing the appeal might then verify, reverse or partly verify the lower court’s judgment.
” It is not unusual for the court of interest reverse judgments,” Rogers stated. “It does take place relatively often, however some appellate courts are basically friendly than others.”
Nevertheless, getting the jury’s decision reversed or perhaps getting the case remanded and returned down to the district court for a brand-new trial, will be a high order.
In the commission claim, the complainants declare that NAR and the brokerage accuseds conspired to repair rates, which is a per se offense of the Sherman Antitrust Act, implying that the act is naturally prohibited, and no extrinsic evidence or other defenses negate its illegality.
In order to reverse the jury’s decision, the accuseds would need to argue that the “guideline of factor” ought to have been used to NAR’s Clear Cooperation Policy rather of per se.
” If it isn’t per se then you remain in guideline of factor area,” Eleanor Fox, a law teacher at New york city University, who concentrates on antitrust, stated. “In guideline of factor area, in some cases it appears like it is a price-fixing arrangement, however you’re not exactly sure therefore you would state that it is presumptively prohibited. Then the accuseds get the modification to show that it wasn’t anti-competitive which these actions or particular guidelines caused greater commissions.”
Fox kept in mind that the accuseds would then need to show that the guideline did not result in greater commissions, or that the greater commissions were essential to offer more services to customers.
In the appeal, the accuseds might likewise attempt to get the case remanded and get a brand-new trial. Hahn thinks the very best case for the accuseds to get a brand-new trial is the Tom Ferryboat Podcast video, which HomeServices declared was premises for a mistrial
If the appeals court guidelines that permitting the video into the commission claim trial affected the jury, the case would be remanded, Fox stated.
While this might be the result the accuseds desire, Hahn is not positive.
” Exactly what is the hope that a brand-new jury would see things in a different way? It isn’t as if [Michael] Ketchmark [the lead attorney for the plaintiffs] disappears; he’s not going to seat a jury of 5 Real estate agents, 3 MLS executives and one occupant on the jury,” Hahn composed in his newsletter.
He continued: “He’ll seat the exact same type of jury he did this time around and most likely get the exact same outcome on the exact same timeframe. And he’ll simply make certain that the accuseds understand he’ll present the Allan Dalton video in proof.”