Moehrl commission lawsuit defendants file motion for summary judgement

The three remaining defendants in the Moehrl commission lawsuit filed a joint motion for summary judgement on Tuesday. The National Association of Realtors, Keller Williams and HomeServices of America, have asked judge Andrea Wood to rule on the suit based on the evidence that has been presented during the discovery period of the proceedings.

“After almost five years of litigation, it is clear that Keller Williams Realty, Inc. had no involvement in the issuance and or enforcement of NAR rules and that it did not impose those rules, including the Cooperative Compensation Rule, upon its franchisee brokerages or their affiliated independent contractor agents,” attorneys for Keller Williams wrote in the motion that both NAR and HomeServices joined.

Filed in March 2019, the Moehrl suit is the oldest of the commission lawsuits currently making their way through various courts across the country. Like the other commission lawsuits, the plaintiffs in the Moehrl suit allege that the real estate industry has colluded to artificially inflate real estate agent commissions.

The suit takes aim at NAR’s Participation Rule, which is referred to as the Cooperative Compensation Rule in this suit, which requires listing brokers to make a blanket offer of compensation to the buyer’s broker in order to list the property on a Realtor-affiliated MLS.

In the motion for summary judgement, the defendants claim that since the suit’s filing, the plaintiffs have yet to present evidence that proves there were conversations among the defendants about the Participation Rule.

“There is simply no evidence—no emails, no meeting minutes, no testimony—showing any involvement by anyone associated with Keller Williams in any activities relating to the NAR rule Keller Williams is alleged to have knowingly conspired to adopt, implement, or enforce,” the attorneys for Keller Williams wrote.

In its filing notifying the court it was joining Keller Williams’ motion, NAR added that the trade group’s rules “are not unreasonable restraints of trade, including because they do not require Plaintiffs to do or pay anything, and have no anti-competitive impact,” and that the rules “did not harm Plaintiffs or sellers, including because they do not cause listing brokers to offer compensation to buyer brokers or increase commission rates, and because they benefit home sellers and buyers.”

In an emailed statement, Darryl Frost, a spokesperson for Keller Williams, reiterated what was in the filing stating that “the evidence is clear that Keller Williams has not participated in a conspiracy with NAR or other Defendants relating to the Cooperative Compensation Rule.”

The arguments that the brokerages and NAR did not conspire to artificially raise or stabilize commissions fell flat in the Sitzer/Burnett case, in which a Missouri jury took less than three hours to determine the defendants violated federal anti-trade laws. Treble damages are to be set at $5.36 billion, though the defendants said they will appeal the verdict.

In a statement on Wednesday, NAR spokesperson Mantill Williams said that compensation is “always negotiable” between agents and their clients.

“The practice of listing brokers offering compensation to buyer brokers emerged in the free market over decades, and it benefits both sellers and buyers: sellers can sell their home for more and have their home seen by more buyers, while buyers have more choices of homes and can benefit from professional representation. NAR’s policies expressly prohibit MLSs, associations, and brokers from setting or suggesting real estate commissions or fees. NAR respectfully requests summary judgment on all of the plaintiffs’ claims.”

HomeServices of America and attorneys for the plaintiffs did not return a request for comment.

The trial for the Moehrl suit was initially expected to take place during the first half of 2024, but after a telephonic status hearing in late-November, it appears that the trial will not take place until the fourth quarter of 2024.