HomeServices
of
America,
the
remaining
defendant
in
the

Sitzer/Burnett

commission
lawsuit,
suffered

another
blow
on
Tuesday.
In
a
filing,
Judge
Stephen
Bough,
who
oversaw
the
Sitzer/Burnett
trial
in
Oct.
2023,
denied
the
HomeServices
defendants’
motion
to
decertify
the
class.

HomeServices
of
America
first
filed
its

motion
to
decertify
the
class
in
early
January
2024.
The
court
initially
certified
the
class
in
April
of
2022,
as
it
found
that
the
class
satisfied
all
the
requirements
of
Federal
Rule
of
Civil
Procedure
23.
Rule
23(b)(3)
requires
that
the
court
“find
that
‘questions
of
law
or
fact
common
to
class
members
predominate
over
any
questions
affecting
only
individual
members,’
and
that
a
class
action
is
the
‘superior’
method
of
adjudication
of
the
controversy.
‘Once
a
class
is
certified,
the
Court
has
an
ongoing
duty
to
ensure
that
the
class
continues
to
be
certifiable.’”

At
the
time,
the
defendants
in
the
suit,
which
included
HomeServices,
as
well
as
the


National
Association
of
Realtors,


Keller
Williams,

Anywhere,
and


RE/MAX,
requested
that
the
Eighth
Circuit
court
of
appeal
review
the
class
certification
order.
The
Eighth
Circuit
refused
this
request.

In
their
motion,
the
HomeServices
defendants
argued
that
“decertification
is
warranted
because
‘[t]rial
revealed
that
individual
issues
pervade
both
the
threshold
question
of
antitrust
injury
and
the
ultimate
question
of
damages.’”
They
also
argued
that
testimony
at
the
trial
revealed
“highly
individualized
facts”
that
would
influence
“whether
any
class
member
would
have
authorized
cooperative
compensation,”
and
that
individualized
proof
would
be
needed
to
determine
the
“extent
to
which
any
class
member
was
injured.”

Additionally,
HomeServices
argued
to
that
“trial
evidence
showed
that
a
meaningful
number
of
class
members
were
not
injured[,]”
that
the
plaintiffs
did
not
provide
a
“common
approach
to
any
damages
calculation,”
and
that
the
plaintiffs’
economic
expert,

Craig
Schulman
“failed
to
provide
this
proof
of
classwide
injury.”

In
response,
Bough
wrote
in
his
motion
that
the
court’s
“reasoning
in
the
class
certification
order
where
it
found
that
common
questions
of
fact
and
law
predominate
remains
the
same.”

Unlike
HomeServices
of
America,
Bough
found
that
Schulman’s
testimony
“demonstrated
these
same
points
through
common
evidence,
satisfying
the
predominance
requirement.
Through
careful
analysis,
Dr.
Schulman
explained
that
commission
rates
were
uniformly
high
because
of
the
cooperative
compensation
rule,
without
which
a
seller
would
not
pay
the
commission
of
the
buyer’s
broker.”

Bough
also
noted
that
the
court
felt
that
the
plaintiffs’
trial
testimony
also
showed
this,
as
well
as
the
predominance
of
the
law
over
any
arguments
regarding
uninjured
class
members.

HomeServices
of
America
still
has
a

writ
of
certiorari
out
with
the

U.S.
Supreme
Court,
which
it
filed
in
early
February.
In
its
filing,
HomeServices
asked
for
a
review
of
an
August
2023
ruling
by
the
Eight
Circuit
Court,
which
found
that
HomeServices
could
not
enforce
arbitration
agreements
signed
by
seller
clients
of
its
franchisees.
The
appeals
court
said
that
this
was
because
the
contracts
signed
by
the
sellers
were
not
directly
signed
by
HomeServices.

HomeServices
did
not
return
a
request
for
comment.

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