As the brokerages try to fend off allegations of a “sweetheart deal” in a separate case, they respond to the antitrust complaint they’re facing in a Missouri court.
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As Weichert and eXp attempt to fight off allegations that they negotiated a “sweetheart deal” to resolve commission-related antitrust claims against them nationwide, the real estate brokerages are pushing back against the claims themselves in new legal filings.
On Feb. 10, Weichert filed an answer to a lawsuit in a case known as Gibson, denying the suit’s allegations and defending itself against the suit’s claims.
“Weichert denies that it engages in or engaged in any anticompetitive conduct or any conduct that has or had anticompetitive effects, including, but not limited to, implementing or adhering to any agreement, combination, or conspiracy that is anticompetitive,” attorneys for Weichert wrote in the legal filing.
The Gibson suit was the first antitrust commission suit filed after an October 2023 jury verdict in the Sitzer | Burnett case awarded billions to a class of homeseller plaintiffs in Missouri.
Like Sitzer | Burnett, the Gibson suit challenges a now-defunct National Association of Realtors rule requiring listing brokers to offer compensation to buyer brokers in order to submit a listing to a multiple listing service, which the plaintiffs allege violated the Sherman Antitrust Act.
But the Gibson suit’s scope is potentially much bigger than that of its predecessor: Gibson seeks class-action status on behalf of “all persons who listed properties on a Multiple Listing Service in the United States using a listing agent or broker affiliated with” the corporate defendants and who paid a buyer broker commission from Oct. 31, 2019, until the present.
EXp filed its own answer denying the allegations in the suit on Jan. 31, days after several other high-profile real estate companies submitted similar filings.
Weichert and eXp’s filings also offered defenses in their filings, some of which are identical to those offered by their fellow defendants. The defenses ranged from accusing the plaintiffs of lacking “standing” (the right to sue), stating class members are required to arbitrate their claims, alleging the plaintiffs did not sustain any damage or injury caused by the defendants, asserting that the acts at issue in the suit were “procompetitive” and did not lessen competition, alleging that the claims are barred by the four-year statute of limitations for federal antitrust claims, and maintaining that the plaintiffs agreed to the defendants’ alleged conduct.
Several other defendants have settled the Gibson case, including Compass, Douglas Elliman, The Real Brokerage, @properties, Redfin, Realty ONE Group, Engel & Völkers, HomeSmart, United Real Estate, NextHome, the Keyes Company, John L. Scott Real Estate Affiliates, The K Company Realty, Real Estate One and Baird & Warner.
The U.S. District Court for the Western District of Missouri, where the Gibson case was filed, has granted preliminary approval to those deals and a final approval hearing for the deals is scheduled on June 24 at 1:30 p.m. Central.
Both Weichert and eXp attempted to reach settlements in the Gibson case last year, but negotiations broke down, and the companies instead mediated settlements with attorneys for plaintiffs in a separate case called Hooper, agreeing to pay $8.5 million and $34 million, respectively.
The Missouri court is currently weighing claims by the Gibson plaintiffs that eXp and Weichert engaged in a “reverse auction,” or a legal strategy in which a defendant negotiates a settlement with attorneys who are willing to accept settlement amounts less than attorneys in a separate case.
That decision may determine whether the companies will have to continue their fight against commission-related antitrust claims or can put the claims behind them.