On Friday, a motion was filed by Berkshire Hathaway Home Services Affiliates, HomeServices Franchise Affiliates, HomeServices of America, and The Long & Foster Companies to enforce arbitration in the lawsuit involving agent commissions, which is commonly referred to as the “Moehrl case” after the primary plaintiff.

According to the lawsuit filed in 2019, the plaintiffs claim that the National Association of Realtors, along with real estate firms such as RE/MAX, Keller Williams, Anywhere, and HomeServices, have colluded to require the NAR’s “buyer broker commission rule” for property listings on a multiple listing service (MLS). The attorneys representing the plaintiffs from Cohen Milstein assert that this collusion has resulted in an added expense for home sellers that would otherwise be paid by the buyer in a more competitive market.

The plaintiffs argued that since the majority of buyer brokers refuse to show homes to their clients if the seller offers a lower commission, or prefer to show homes with higher commission offers first, home sellers are motivated to offer a high commission to secure the cooperation of the buyer brokers. This leads to a situation where sellers are compelled to make a blanket, non-negotiable offer to satisfy the buyer brokers’ demands.

At the end of March, Judge Andrea R. Wood from the U.S. District Court for the North District of Illinois granted class certification for the case, which allowed attorneys from HomeServices to request for an order to enforce arbitration.

HomeServices filed a motion to enforce arbitration, claiming that some unidentified members of the class had signed arbitration agreements in relation to the sale of their homes. These agreements have a specific delegation clause that entrusts the arbitrator with making decisions regarding gateway or threshold issues of arbitrability.

Three years ago, HomeServices attempted to remove an unnamed class member from the arbitration process, but since they were outside the court’s jurisdiction, HomeServices was unable to compel them to undergo arbitration. The court rejected HomeServices’ motion to remove the member from arbitration.

Recently, Judge Wood submitted a minute entry stating that the plaintiffs have until May 1 to submit their response.