Michael Ketchmark

The listing agreement Rhonda Burnett signed asked her to circle a commission—7, 8, 9, or 10 percent, or a blank—and 6 percent was already filled in on the blank. Her agent, from a HomeServices of America subsidiary, told her “nothing was negotiable.” The house was listed at $275,000 and sold for $250,000, and the agents received $15,298. In the first week of the home sellers’ trial in October 2023, Burnett, a former school psychologist and public school advocate, took the witness stand in a windowless federal courtroom in Kansas City. “I paid the buyer’s broker to negotiate against me and my husband, which resulted in a lower sales price,” she testified. “She did a good job for him [the buyer], but I had to pay her commission.”

Michael Ketchmark had opened the home sellers’ case before U.S. District Judge Stephen R. Bough by telling the jurors, “This is a refund case.” The sellers in the class had paid buyers’ agents on 265,297 home sales, and he asked the jury to give the money back. On October 31, after about two and a half hours of deliberation, the jury found the National Association of Realtors, HomeServices of America, and Keller Williams liable and returned $1,785,310,872, the full amount the sellers sought, subject to trebling under the antitrust laws.

In March 2024 NAR agreed to pay $418 million and to eliminate the rule the jurors had heard about for two weeks, which required sellers’ brokers to offer buyers’ brokers a commission. HomeServices agreed separately to pay $250 million, and the settlements with all the defendants together exceeded $1 billion. On August 19, 2026, the Eighth Circuit affirmed the approval of the nationwide settlement, and on September 24 it denied two objectors’ petitions for rehearing.

A Call From Brandon Boulware

The sellers’ lawyers had filed the case in April 2019. One of them, Brandon Boulware, was a close friend of Ketchmark’s, and he called on a Monday and asked to stop by Ketchmark’s office to talk about it. “It was my cell phone that went off,” Ketchmark said later. He had no background in real estate law. “I represented families, usually in wrongful death cases,” he said. He had never heard of the National Association of Realtors, and he learned that it was, in his words, “the largest lobbyist in the country, bigger than Big Pharma, bigger than NRA.” “I started looking at this and digging into it, and I was stunned, and I just couldn’t believe it,” he said.

In 2021, two years after they sued, Boulware and his fellow Kansas City lawyers Jeremy Suhr and Eric Dirks brought Ketchmark and his partners Scott McCreight and Benjamin Fadler into the case to strengthen the trial team. Ketchmark’s practice had been built almost entirely on employment and personal-injury claims. He usually tried cases alone, and he insisted on taking the lead.

The lawsuit, Burnett v. National Association of Realtors, No. 4:19-cv-00332 in the Western District of Missouri, attacked a rule NAR adopted in 1996. The rule required the seller’s broker to offer the buyer’s broker a commission as a condition of listing the home on one of NAR’s multiple listing services, the databases through which nearly all homes are sold. The sellers alleged that NAR and four major brokerage companies—HomeServices of America, Keller Williams, Anywhere Real Estate, and RE/MAX—conspired to follow and enforce the rule, and that it kept sellers paying a 6 percent commission split between their own agent and the buyer’s. They sued under the Sherman Act, Missouri’s antitrust law, and the Missouri Merchandising Practices Act.

At one point, Ketchmark recalled, “there were 123 defense lawyers on the phone. And I just thought, man, what have we done here?” Had he known how consuming the case would be, he said, “I would have been a little more hesitant to get involved.” He added: “Sometimes it’s easier to just jump out of the airplane and worry about pulling the parachute later.”

From Philosophy to Platte County

Ketchmark had gone to the University of Iowa with vague plans to become an astronomer until the major’s math requirements pushed him to a philosophy degree. He graduated in 1987 and enrolled at the University of Iowa College of Law because, he has said, “I wasn’t ready to grow up and be an adult, and it pretty much was a continuation of school.” He finished in 1990 and began practicing in Kansas City as an employment defense lawyer at Shughart Thomson & Kilroy, a predecessor of Polsinelli. He had been inspired by To Kill a Mockingbird, and the job was “pretty far away from being Atticus Finch.”

He opened his own firm in 1995 and spent two years without money. Then, on a friend’s recommendation, he filed suit for a man who had suffered a brain injury at work, just before the statute of limitations ran. He was inexperienced enough that the judge had to explain the Missouri Approved Instructions to him. In 1997 a Platte County jury returned a $2.1 million verdict for his client.

Robert Courtney, a Kansas City pharmacist, diluted cancer medications and other drugs dispensed from his pharmacy at Research Medical Center and pocketed the profits—about 98,000 prescriptions for some 4,200 patients over a decade. One sample contained less than 1 percent of the prescribed amount. Ketchmark represented more than 275 families in suits over the dilution. In October 2002, working with Grant Davis, he tried Georgia Hayes’s case against Courtney in Jackson County Circuit Court. Hayes, 44, was a cancer patient whose chemotherapy drugs Courtney had watered down. In closing argument Ketchmark told the jurors: “Speak out loudly to him. Speak out loudly to the world that this is wrong.” The jury of eight women and four men deliberated a little more than two hours and returned $2 billion in punitive damages and more than $225 million in actual damages. “This is a loud message that you don’t do things like this,” Ketchmark said. “You don’t mess around with people’s lives.”

Eli Lilly and Bristol-Myers Squibb settled the lawsuits against them for about $71 million, and Courtney’s insurer agreed to pay another $35 million; Ketchmark helped negotiate settlements for Courtney’s victims. When Courtney left prison early for home confinement in July 2020, after about 18 years of a 30-year sentence, Ketchmark said: “My heart goes out to all of Robert Courtney’s victims, the thousands of lives that he impacted. The pain that they must be feeling on hearing this is unimaginable.”

In cases like those, a loss at trial could leave an injured client in dire financial straits; no home seller in the Realtors case stood to lose a house if the jury ruled the other way. “It was significantly and profoundly important to change this industry, but I didn’t have a widow sitting next to me who lost their spouse in a tragic accident and lost the breadwinner of their family,” Ketchmark said.

Three Percent, Year After Year

Judge Bough had certified three classes in April 2022. The Sherman Act class covered sellers who, beginning April 29, 2015, listed homes through brokers affiliated with the corporate defendants on four multiple listing services—Heartland MLS, the Columbia Board of Realtors, the Mid America Regional Information System, and the Southern Missouri Regional MLS—and paid a commission to the buyer’s broker. The sellers’ economist, Craig T. Schulman of Texas A&M, used Australia as his benchmark and opined that without the challenged rules buyer brokers would be eliminated or rare, around “1% to 5% of real estate sales.” The defendants answered that sellers had their own reasons to pay buyers’ brokers and that many class members had benefited from the arrangement when they bought homes. Judge Bough noted that buyer-broker commission rates had “experienced very little variation, with yearly averages ranging from 2.974% to 2.985%, regardless of how long a house remained on the market,” and he held that “[a]rtificially inflating the baseline for commission rates is evidence of a classwide, antitrust impact.” He rejected the offset argument, applying the rule that an antitrust plaintiff may recover the full overcharge even if the plaintiff benefited in some other way.

In December 2022 Judge Bough denied summary judgment to every defendant. The defendants had argued that the rule of reason governed, which would have required the sellers to prove harm to competition in a defined market; that the rule resulted from independent business judgments; and that brokers, not the defendants, set the commissions sellers paid. Judge Bough wrote that “the Court agrees with Plaintiffs and finds that the per se rule is applicable here.” The evidence before the court included training materials that HomeServices had circulated from Intero, a California subsidiary, telling brokers to “[a]lways have 6% written in on ALL listing agreements” and, if they “have to give something,” to “remember [they] always have to pay [the Buyer-Broker] a minimum of 2.5%.” Keller Williams gave brokers scripted answers for sellers who asked for a lower rate: brokers “require a full 6 percent” to “do the advertising that [they] do.” Gino Blefari, the chief executive of HomeServices, had testified that the unconditioned offer of compensation was “a core component of organized real estate.” Expert evidence showed that upwards of 90 percent of transactions on the subject MLSs offered buyers’ brokers exactly 3 percent.

By the time of trial the sellers’ lawyers had taken about 100 depositions, logged 30,000 hours of attorney time, and spent some $7 million in costs. They rented an apartment a few blocks from the federal courthouse and filled it with copiers, computers, and enough binders of discovery material to cover seven long folding tables.

They also ran mock trials, 18 separate times. “We pulled 24 people literally just kind of off the streets, and we would present the case,” Ketchmark said. He tried out an explanation built on his city’s football team. “I’m a huge fan of the Kansas City Chiefs, world champions,” he told the mock jurors, and “when the Kansas City Chiefs host the Denver Broncos, we don’t pay for their coach’s salary.” Then he asked them, “When you sell your home, why are you paying the buyers’ agents?” When the panels grasped how commissions were being set on the MLS, his reaction was, “I’m like, they get it. They understand. They get it.”

A Refund on 265,297 Home Sales

Jury selection began on October 16, 2023, at the Charles Evans Whittaker U.S. Courthouse. Judge Bough said the pool of at least 80 people was the largest the district had convened for a non-capital civil case in recent memory, and home sellers who belonged to the class were excused at once. Ketchmark asked the prospective jurors whether they could handle a decision that, covering years of sales, could be worth billions of dollars. Nine were seated, seven men and two women. When one juror, a new mother, was excused three days later, seven men and one woman remained.

Ketchmark opened with the arithmetic before a room of about 100 people. The class members had sold 265,297 homes during the relevant period and paid the buyer’s agent an average of $6,700 on each sale, a total of $1.78 billion, and they wanted the money returned. “In a free marketplace, you’d expect differences in prices,” he told the jurors, and he showed them data on Missouri home sales from 2015 to 2022: 98 percent had closed with a buyer’s commission between 2.5 and 3 percent. “It’s about letting the free market decide,” he said. “Why is this a mandatory rule? If it’s so good, make it voluntary. Don’t put it in the MLS where everyone can see if it’s being followed.”

He put the defendants’ own words in front of them: NAR’s manual Navigating Legal Risks, which spoke of trade associations as places for “hatching conspiracies,” and an email from the co-founder of Keller Williams with the line “we can’t discuss commission and splits.” Ketchmark sat at a table for three, with his partner and with Boulware, the man who had brought him the case, and the defense lawyers filled the other side of the room. He said later that “in a lot of ways, I feel that sometimes these corporations are bringing a briefcase to a good old street fight.”

When court adjourned that day, Ketchmark said, a Realtor in the audience hugged him, thanked him, and asked whether he would represent Realtors in a class action against the same defendants. “But the idea that these large corporations and NAR are the voice of Realtors is just not true,” he said. In early 2024 he asked, “Name a single industry where you have to pay the other side,” and said the argument was easy for juries to grasp: “Most people have never been hit by a truck. Thankfully, most people haven’t been harassed at work. Most people have never had a product destroy their life. But a whole bunch of people have bought and sold houses.”

Six Percent, Already Written In

Ketchmark had questioned Blefari and Gary Keller, the co-founder of Keller Williams, in their depositions, and the jury watched the recordings in the trial’s first days. He played a training video in which Blefari told agents that he pre-wrote listing agreements at 6 percent and that when a seller asked whether commissions were negotiable, he said they were, “but I can only go up.” “I was showing them what I did so they can learn from that,” Blefari told Ketchmark in the deposition. “I certainly don’t believe that fixing commissions is appropriate. I do believe training is essential.” Ketchmark asked whether bringing competitors together, training them to write 6 percent into the contract, and then telling sellers they could only go up was “quintessential price-fixing.” “No, it’s just negotiating,” Blefari answered. To the jury, Ketchmark said: “We’ll prove to you that it’s not.”

Keller’s deposition had turned testy. Ketchmark showed him video from a Keller Williams Family Reunion at which Keller put up a slide of the average commissions the company’s agents earned from 2002 to 2019. “We didn’t talk about commissions,” Keller said. “I reported the numbers and walked off the stage.” Ketchmark produced an Inman article carrying commission data from Keller Williams’ research department and an email in which Keller told his staff “Nice job” after it ran. “Why did you want Inman to publish this?” Ketchmark asked. “Did you want your competitors to know you were keeping your part of the bargain?” “Uh, no,” Keller replied. In his book, Keller had written that the industry had “evolved into a system of cooperative competition,” or “co-opetition.” Ketchmark told the jury: “That’s not competition.”

NAR’s chief executive, Bob Goldberg, was questioned in his deposition about the association’s Real Estate Services group. Former chief executive Dale Stinton had said the group should not keep meeting minutes, so that what happened at its meetings stayed confidential, though NAR itself said committees should keep minutes to show that no illegal conduct occurred. “It’s easier to hatch a conspiracy without minutes, right?” Ketchmark said. Goldberg answered that the decision was “made to foster open conversation” and that “there was no nefarious conversation that happened in this group.”

Teachers and a Former Police Officer

Ketchmark examined Hollee Ellis, a former high school English teacher and the daughter of a 30-year real estate veteran, who had sold four homes and bought five. The sale at issue came when a new job took her to South Carolina. By Ketchmark’s figures, the buyer’s agent’s share of her 6 percent commission equaled 20.55 percent of her net equity, and the two agents together took roughly 40 percent of it. “It was a hard pill to swallow that we would walk away with so little,” Ellis said. NAR had claimed that its rule helped buyers by relieving them of the burden of paying their own agent, and Ketchmark asked Ellis whether she considered herself a “cash-strapped buyer.” She said she did, and that the equity she paid to the buyer’s agent would have improved her position as a buyer. “The buyer who chose them and who they’re working for should pay them,” she said. She testified that she had not known commissions could be negotiated and would have “gone a different direction” if she had. On cross-examination the defense established that she signed the contract with the commission already filled in.

Ellis told the jurors why she had joined the suit. “I just didn’t think it was a fair practice,” she said. She has five children who are starting their lives and buying homes, and she wanted the practice ended for them. “If I can help my kids out, I’m gonna do it.”

Jeremy Keel, who works in elder law, paid 6 percent, split evenly, on a $205,000 sale. He testified that he had not known the rate could be negotiated because the figures were pre-filled on all the contracts; on cross-examination, Keller Williams’ lawyer, Barack Echols, pointed out that Keel had paid no commission as a buyer and had once paid only 5 percent. Jerod Breit, a former police officer who became a regional executive director of Mothers Against Drunk Driving, found 6 percent on his settlement statement though he had signed for 5.5 percent. “It was preloaded on the contract and I thought I was signing what I needed to sign,” he said. Asked by Ketchmark how he felt when he learned of the higher charge, Breit answered, “It made me feel stupid.” Of his first home sale, he testified, “I was exposed for the first time to how it works and I didn’t think necessarily that it was fair.”

HomeServices’ lawyer, Robert MacGill, had Breit acknowledge on cross-examination that he knew he would pay the buyer’s agent, and he argued that a deal was a deal. On redirect Ketchmark asked Breit, “Do you hate buyer agents?” Then he turned to the bargain MacGill had invoked: “Are you asking they keep up their side of the deal by complying with federal antitrust laws?” That evening Ketchmark described the people he represented: “These are teachers, a former police officer, an executive director for Mothers Against Drunk Driving.”

Control, Detection, Punishment

Ketchmark conducted the direct examination of Schulman, whose analysis covered transactions on the four MLSs from April 2015 to June 2022. Schulman told the jury that “for an economic conspiracy to happen three key facets must be in place: control, detection and punishment.” NAR’s rule supplied control by requiring every listing to carry an offer to the buyer’s broker. The MLS supplied detection: “This is built into the way the MLS operates. You have to post an offer of a commission rate. If the offer is below standard, everyone can see it.” Steering supplied punishment, because buyers’ agents could see the offered rates and steer clients away from listings that offered less. Commissions, Schulman testified, did not move with the market: “those prices don’t respond at all to the housing market; whether it’s hot or slow, prices are stuck.” He measured the class’s damages as every dollar sellers paid to buyers’ brokers, more than $1.7 billion. Schulman called NAR’s cooperative compensation policy “the trunk of the tree that helps support” the price-fixing.

In Kansas City the buyer’s agent had received exactly 3 percent in 92.6 percent of home sales over seven years, and the sales in Columbia and Springfield showed the same pattern. “It was a very visual image,” Ketchmark said later of the chart. “If it’s a randomness to it, you would expect on a chart, like, all these dots all around.” Instead, he said, “it was a single bar graph.” The prices, in his words, were “so stabilized, and the chances of that happening without collusion was almost zero.”

NAR’s lawyer, Ethan Glass of Cooley, pressed the absence of direct proof. “What kind of conspiracy is done out in the open? There isn’t one,” he had told the jurors in his opening statement. “You have not seen a single document with the defendants discussing commissions with each other,” he put to Schulman on cross-examination, and he stressed that NAR’s rule contains no price and obliges no seller to pay any particular amount. In closing, Glass told the jury that about 3,000 real estate agents in Missouri are not Realtors, that sellers in the four MLSs had offered a commission other than 3 percent 110,000 times during the seven years at issue, and that “[i]t’s not illegal for trade associations to make rules.” The question for the jury, he said, was whether a conspiracy existed to “follow and enforce” the rule, and the sellers had not proved one. He also told the jurors that Missouri law allows a seller to agree that the seller’s agent may share compensation with the buyer’s agent. MacGill argued for HomeServices that the rule simplifies transactions and that the clustering of commissions was the product of competition. Keller Williams’ lawyer, Timothy Ray, pointed out that the sellers had not called a single real estate agent to testify.

The defense called its own economist, Lawrence Wu, who testified that the cooperative compensation rule benefits sellers. Wu pointed to two markets that operate without NAR’s rule, Washington’s Northwest Multiple Listing Service and the Real Estate Board of New York, as producing similar results. On cross-examination Ketchmark had Wu acknowledge that the defendants were paying him and that their lawyers had reviewed his testimony, and he answered that the rules those two markets used undercut the comparison. “It’s like a game of whack-a-mole,” he said.

Matthew 6 and the 2017 Email

Keller testified in person in the trial’s second week. On direct examination he told the jury that Keller Williams does not set commission rates, which are determined locally and case by case. “The 6% commission is a mythical animal,” he said. “As a national average, it does not exist.” Ketchmark opened his cross-examination on the subject of Keller’s charitable giving. He read from Matthew 6:1–2—“So when you give to the needy, do not announce it with trumpets, as the hypocrites do in the synagogues and on the streets, to be honored by others”—and asked whether Keller had done so anyway, to influence the jury. “To my knowledge, I’ve never gone outside of this room and trumpeted that to anybody, sir,” Keller said.

Keller had said that he had no idea what commission rates would be the next year because they change with market conditions. Citing a Keller Williams slide showing the average commission its agents offered in Kansas City, Ketchmark told the jury he was “100% certain” that commissions there would be 3 percent the next year. He then showed Keller a November 2017 email to Keller Williams executives: “Our agents’ commissions are under siege.” Keller acknowledged writing it. “Commission rates are not under siege,” he testified. “The amount of money agents take home is under siege.” He said he was referring to companies such as Zillow that took around 40 percent of agents’ commissions in return for leads. Ketchmark closed by asking Keller whether he agreed that if technology companies controlled listings data, Keller Williams would lose control and its market centers would make less money.

“Use Your Voice”

Judge Bough denied the motions for judgment as a matter of law that NAR, HomeServices, and Keller Williams filed during trial, and the case went to the jury. HomeServices had argued that the sellers offered no evidence of a conspiratorial agreement. Bough wrote that “Plaintiffs have presented sufficient evidence that a reasonable jury could find for Plaintiffs.”

Closing arguments came on October 30, and Ketchmark spoke for about an hour and a half. “Everything I have ever done in my life has prepared me to stand before you today,” he told the jurors. “This is a courtroom of accountability and you have the power.” “The data shows what it shows and they know it,” he said, and he told the jury that the misconduct “starts at the top; it’s the head of the snake.”

In rebuttal, Ketchmark answered the argument that the sellers had signed contracts agreeing to pay. “You’re not allowed to fix prices and then say, ‘Well you paid the fixed price,’” he told the jury. He said he had been waiting “for five years!” to hear why the rule was mandatory. “They haven’t explained it to you.” He told the jurors that the sellers were not blaming real estate agents: “Did I ever say at one time that 1.6 million Realtors are part of this conspiracy? It’s a deliberate attempt to confuse you.” To Ray’s point about agents, he said, “They’re the ones with the agents! Where are their agents? Where are their people?” To the absence of emails among competitors, he pointed to the MLS, where every offer was posted: “You don’t have to exchange emails. It’s right there. Hidden from the public.”

“They’ve gotten away with it for so long,” he said. He asked the named plaintiffs, four of whom were in the gallery, to stand. “They’re the voices of the forgotten people,” he said. “Our system doesn’t have to forget you. Our system can hold these corporations accountable. Use your voice.” In the same rebuttal he told the jurors, “My mother taught me to use my voice.”

The eight jurors began deliberating at 8:55 on the morning of October 31. “The jury goes out, and then you sit there, and you get a pit in the bottom of your stomach because they’re literally just answering five questions,” Ketchmark said later. About an hour and a half in, the jurors asked for the exhibit with the damages calculation. At 11:28, two hours and 28 minutes after they began, word reached the courtroom of a unanimous verdict. The jurors found that the defendants had engaged in a conspiracy that “had the purpose or effect of raising, inflating or stabilizing broker commission rates paid by home sellers,” causing the class “to pay more for real estate brokerage services when selling their homes than they would have paid absent the conspiracy.” They awarded $1,785,310,872, a figure calculated from sales data on some 265,000 home sales over seven years. Under federal antitrust law the award was subject to trebling, to about $5.4 billion.

“It’s been a long four and a half year fight,” Ketchmark said after the verdict. “But the truth has come out. The jury heard all the evidence and today’s the day of accountability.” Of the award he said later, “And they awarded to the penny what we asked for.” He had insisted on the lead, and he came out of the trial crediting the collaboration among the three firms. “It taught me that the way I used to try it was wrong, that you’re so much better having strength in numbers,” he said.

Minutes after the verdict, Ketchmark’s team filed Gibson v. National Association of Realtors in the same court on behalf of home sellers nationwide, naming NAR, Compass, eXp World Holdings, Redfin, Weichert, United Real Estate, Howard Hanna, and Douglas Elliman. The proposed class covered sellers anywhere in the United States who listed on an MLS with a broker affiliated with a corporate defendant and paid a buyer-broker commission from October 31, 2019. “Our hope and goal is to free the grip they have on homesellers across the United States,” Ketchmark said.

Eliminating the Mandatory Offer

Two defendants had settled before trial: Anywhere Real Estate, formerly Realogy, for $83.5 million, and RE/MAX for $55 million. Keller Williams agreed to pay $70 million in February 2024. Judge Bough approved the three settlements on May 9, 2024. For five years each company had to tell its brokerages and agents that offers of compensation to buyers’ brokers may not be blanket, unconditional, or unilateral; to disclose in listing and buyer agreements that “broker commissions are not set by law and are fully negotiable”; to bar agents representing buyers at company-owned brokerages from “advertising or otherwise representing that their services are free”; and to stop filtering listings by the commission offered unless a client asked. In the same order Judge Bough noted that the sellers’ lawyers had been required to spend “$12,923,266.48 of their own money toward the litigation through the date of the initial settlements” and had “faced off against no fewer than twenty highly-respected law firms over the course of the litigation.”

In a video posted in January 2024, NAR’s interim chief executive, Nykia Wright, said the association “does not set commissions—it never has and it never will. Period. End of story.” On March 15, 2024, NAR settled. It agreed to pay $418 million into a non-reversionary fund—$5 million within 30 days of the first motion for preliminary approval, $197 million within 90 days of final approval, $72 million a year after that, another $72 million a year later, and the remaining principal with interest in the third year.

NAR also agreed to eliminate and prohibit any requirement that listing brokers or sellers make offers of compensation to buyer brokers, to prohibit such offers on the MLS, and to require MLS participants working with a buyer to enter into a written agreement before the buyer tours any home. The Eighth Circuit later described the buyer agreements: they “must disclose the broker’s fee, identify the source of payment, and bar buyer broker’s fees from exceeding the buyer’s agreed sum.” The release excluded HomeServices of America, BHH Affiliates, HSF Affiliates, Long & Foster, and Berkshire Hathaway Energy. HomeServices then agreed separately to pay $250 million. The practice changes took effect on August 17, 2024.

Ketchmark’s firm, Boulware Law, and Williams Dirks Dameron served as co-lead class counsel for the nationwide settlement with Hagens Berman Sobol Shapiro, Cohen Milstein Sellers & Toll, and Susman Godfrey. Other brokerages, including Brown Harris Stevens and The Agency, could opt into the settlement. Judge Bough held the final approval hearing on November 26, 2024, and entered an 88-page final approval order the next day. Final judgment was entered on January 15, 2025. Over two million claims were submitted.

Judge Bough overruled every objection. The law professor Tanya Monestier had filed a 136-page objection, and he wrote that it “would risk reverting to rules that a jury determined violate federal antitrust law.” He found that more than 99 percent of identified class members had been notified of the settlements. “We are excited to move forward and watch the marketplace work for the benefit of home sellers,” Ketchmark said.

What the Eighth Circuit Affirmed

Objectors filed seven appeals. Spring Way Center called the expanded class unprecedented and the settlement grossly inadequate; New York objectors argued that claims involving the Real Estate Board of New York did not share a factual predicate with the NAR claims; another objector argued that home buyers’ claims had been released without adequate representation; and Monestier argued that the named plaintiffs lacked Article III standing to support the injunctive relief. On August 19, 2026, a unanimous panel of Judges Smith, Erickson, and Kobes affirmed in an opinion by Judge Smith. The court found “an ongoing, continuous injury among the named plaintiffs who determine standing for the class,” held that the released claims shared a common nucleus of operative fact with the conspiracy the sellers had alleged, and upheld Judge Bough’s requirement that objectors appear in person. “Based on the record, we conclude that the district court did not err in finding that the negotiated settlement provides benefit to the class members,” the panel wrote.

On September 1, 2026, the Eighth Circuit also affirmed approval of $110.6 million in settlements that Compass, Real Brokerage, Realty ONE, @properties, Douglas Elliman, Redfin, Engel & Völkers, HomeSmart, and United Real Estate reached in Gibson, which Judge Bough had approved in November 2024. Two weeks later the court rejected three more objectors’ appeals in Burnett, writing that their merits “were fully resolved” by its August decision. It denied the rehearing petitions of two objectors, Monty March and Robert Friedman, on September 24, and on October 2 it issued its mandate. In early October it also turned down an objector’s request to reconsider the Gibson decision.

Watching the MLS

As the practice changes took effect in August 2024, Ketchmark said his team had been monitoring industry webinars and training programs. “If anyone thinks they’re going to be able to avoid the application of this settlement agreement and the law by creating some new forms or hiding this cooperation on new websites, they’re wrong,” he said. He declined to bless draft forms before seeing how they were written and used: “We’re going to call balls and strikes when the ball crosses the plate, not ahead of time.” The requirements, he said, were “real straightforward: You can no longer use the MLS as a vehicle for sharing cooperation or for fixing prices.”

He said the agents he had dealt with were “good, decent, hardworking men and women who truly care about doing the right thing,” and that “the real estate agents have been the victims of what’s happened here at a higher corporate level.” “Ultimately, the goal is to benefit homesellers in America and to bring down the cost of commissions in America,” he said.

The NAR agreement requires MLSs that opted into the settlement to give the sellers’ lawyers listing and commission data for class notice, administration of the settlements, and the litigation of the cases. When the vendor Financial Business Systems refused to release the data without each MLS’s explicit permission, the home sellers asked Judge Bough in July 2026 to approve a notice procedure: every participating MLS would have seven days to object, silence would count as written permission for vendors to share the data, and the judge would resolve any disputes.

A very significant part of the HomeServices settlement, Ketchmark said, was “carving out our lawsuit against Berkshire Hathaway Energy, and allowing us to proceed and go forward against them.” Berkshire Hathaway Energy, HomeServices’ parent company, argued that its subsidiary’s settlement protected it too, and that the carve-out “cannot make one single economic entity into two.” On April 9, 2026, Judge Bough denied its motion for summary judgment, reasoning that a core part of setting HomeServices’ $250 million settlement was that it would not cover the parent, which would be held accountable in Gibson. In September 2026, Berkshire Hathaway Energy and Crye-Leike were the last class defendants still litigating in Gibson. In August 2024 Ketchmark had said of the case against the parent company, “That’s going to be the monster case.”