4:19-cv-00332
W.D. Mo.Nov 27, 2024Background
- This is the Court’s final approval order granting settlement of nationwide antitrust class claims challenging MLS/NAR rules and broker practices; preliminary approval previously granted and notice provided to the class.
- The Settlements (NAR and HomeServices, among others) provide nearly $700 million in cash plus substantial injunctive/practice-change relief (e.g., removal of mandatory MLS offers of compensation) and cover sellers who listed homes on MLSs during specified date ranges.
- JND Legal administered notice: ~40 million direct mail/email notices, 300+ million digital impressions, over 2 million website visitors; claims period remains open (claims already >491,000).
- The Court certified settlement classes under Rule 23(b)(3) for settlement purposes, finding numerosity, commonality, typicality, adequacy, predominance, and superiority satisfied and reaffirmed class representatives and class counsel.
- A small number of objectors and 39 opt-outs were filed; the Court overruled all objections (many for lack of standing or failure to comply with Court order to appear) and found the settlements fair, reasonable, and adequate under Rule 23(e)(2) and related Eighth Circuit factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of notice | Notice plan (mail, email, publication, website) reached class and apprised members of terms and rights | Objectors claimed inadequate or missing notice | Notice was "best practicable," reached >99% of identified class; satisfied Rule 23 and due process; objections overruled |
| Class certification for settlement | Nationwide class appropriate to effectuate global settlement and conserve resources | Some objectors argued geographic expansion or different local predicates made nationwide class improper | Settlement-only certification affirmed: plaintiffs developed robust record; nationwide scope justified to achieve global peace |
| Fairness/reasonableness of settlements | Settlements yield substantial monetary recovery + practice changes; negotiated at arm’s length after extensive litigation and trial | Objectors argued recovery inadequate or practice changes unenforceable | Court found settlements fair, reasonable, and adequate under Rule 23(e)(2) and Van Horn factors; enforcement mechanisms in agreements adequate |
| Scope of releases (seller vs. buyer/indirect claims) | Releases limited to claims arising from the same factual predicate; buyers-only not class members; sellers who also bought may have buyer claims released if same predicate | Follow-on litigants argued releases improperly bar buyer/indirect claims without separate consideration or subclassing | Releases upheld as consistent with Eighth Circuit law (same factual predicate/Uponor standard); class members could opt out; no conflict requiring subclasses |
| Standing to object / procedural compliance | Plaintiffs: only class members who comply with Rule 23(e)(5) and Court orders may object; Court may require in-person appearance | Many objectors lacked proof of class membership or failed to comply with appearance order | Court struck/waived objections from those who failed to appear or show standing and overruled the rest on the merits |
| Adequacy and amount of attorneys’ fees | Counsel sought one-third of common fund; argued extensive time/expense, risk, trial victory, practice-change value justify award | Objectors urged reduction (citing megafund concerns, T-Mobile) | Court approved percentage method (one-third), found Johnson factors and lodestar cross-check support the award (lodestar multiplier ~3.6) |
| Enforceability of practice changes | Plaintiffs: settlement contains enforcement mechanisms, opt-in MLS/broker obligations, proof-of-compliance, and Court retains jurisdiction | Objectors said practice changes lack enforceability or are easily circumvented | Court found multiple enforcement mechanisms (court jurisdiction, opt-in agreements, proof-of-compliance) and rejected speculative workarounds as grounds to deny approval |
| Allocation / plan of distribution timing | Plaintiffs: plan of allocation can be prepared after final approval and following additional settlements; allocation can be pro rata and notice of allocation will be provided | Objectors demanded detailed allocation before approval | Court allowed post-approval allocation process; held not required to include full allocation formula in initial notice (Petrovic principle) |
Key Cases Cited
- Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1, 921 F.2d 1371 (8th Cir. 1990) (strong policy favoring settlements, especially in protracted litigation)
- Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) (notice need not include formula for individual awards; settlement notices must fairly apprise class)
- Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988) (factors for evaluating class settlement approval)
- In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922 (8th Cir. 2005) (ultimate question is whether settlement is fair, reasonable, and adequate)
- Grunin v. Int'l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) (standards for settlement notice and fairness hearing)
- Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) (attorneys' fees may be paid from common fund to prevent unjust enrichment)
- Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) (due process requires notice reasonably calculated to apprise interested parties)
- Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (class notice must be best practicable under circumstances)
- Rawa v. Monsanto Co., 934 F.3d 862 (8th Cir. 2019) (percentage-of-the-fund fee method endorsed in Eighth Circuit)
- In re T‑Mobile Customer Data Sec. Breach Litig., 111 F.4th 849 (8th Cir.) (discussion of fee awards in megafund contexts and that no per se percentage reduction is required)