NAR and others will need to clean up and resubmit their briefs by Sept. 15. Law professor (and appellant) Tanya Monestier called the ruling a “critical” win.
Stephanie Reid-Simons
Andrea V. Brambila2 mins
The appeals began to flow in just a day after a judge approved the National Association of Realtors' landmark deal to settle the Sitzer/Burnett commissions lawsuit.
That was last November. Now, the U.S. Court of Appeals for the Eighth Circuit court has made it clear that its decisions will be based on evidence introduced at the industry-altering trial — no new additions.
It's a "critical" win, according to a LinkedIn post by Tanya Monestier.
Monestier, a law professor at the University at Buffalo School of Law, previously expressed concerns about the settlement in a lengthy objection, and she has spoken out about other industry practices.
In May, she filed a brief arguing that the plaintiffs in Sitzer/Burnett did not have standing to pursue industry practice changes. Standing, meaning the legal right to sue over something you have been directly affected by, is a key issue in this case.
The home sellers who sued "did not allege a concrete, cognizable future harm" solved by the settlement, Monestier argued, so the lower court "approved a settlement it had no authority to approve."
What did the appeals court do? On Sept. 10, the U.S. Court of Appeals for the Eighth Circuit denied a request from the National Association of Realtors, Brown Harris Stevens and The Agency to add fresh material to the appellate record.
Specifically, they wanted to add filings from similar commissions cases, which they said confirmed that the plaintiffs had standing.
The court also sided with appellants who argued that the Burnett plaintiffs' brief improperly cited those same materials, which tried to rely on a different case to prove standing, Monestier said.
Real Estate News has reached out to NAR for comment.
Now what? The seller plaintiffs, led by Rhonda Burnett, and the original defendants in Sitzer/Burnett — NAR, HomeServices of America, Keller Williams, Anywhere and RE/MAX — as well as Brown Harris Stevens and The Agency, have been ordered to remove the disallowed content and resubmit their briefs by Sept. 15.
This ruling could push oral arguments to later this year or potentially early 2026.
