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The judge overseeing the bombshell Sitzer | Burnett commission trial refused to grant a mistrial on Wednesday, rejecting claims from HomeServices of America, the National Association of Realtors and Keller Williams that they were treated unfairly in court.
The ruling came in response to a motion from HomeServices, filed earlier on Wednesday, arguing that a video played in court a day earlier by the plaintiffs’ attorney amounted to an “ambush” that severely jeopardized the franchisor’s chances for a fair trial. Attorneys for the National Association of Realtors and Keller Williams also subsequently said they wanted the judge to declare a mistrial, with NAR attorney Ethan Glass saying he wanted the case to be dismissed entirely.
“We are not asking for a new trial,” Glass said.
However, the judge ultimately ruled late Wednesday that a mistrial was “too drastic a remedy under the current circumstances,” according to the court’s docket.
The episode began Tuesday, when Michael Ketchmark — an attorney representing the homeseller-plaintiffs — played a segment from a video of a Tom Ferry podcast interview with Allan Dalton, CEO of Real Living Real Estate and senior vice president of Berkshire Hathaway HomeServices. During the segment, Dalton, sharing a technique he said he learned from a top producer, compared agents who agree to lower commissions to “hookers” offering their services to “sailors.”
“There’s no bleeping bleeping way I’m going to cut my bleeping bleeping commission,” Dalton says in the video, substituting the word “bleeping” for what he said would actually be profanity. “What do you think, I’m a bleeping bleeping hooker standing outside the Lincoln Tunnel at three o’clock in the morning giving bleeping bleepings to sailors?”
“If you think I’m going to cut my bleeping bleeping commission, you can take this home and shove it up your bleeping bleeping and I know that it will fit,” Dalton says in the video, which was recorded in September 2019, months after Sitzer | Burnett was filed.
The video wasn’t on the plaintiffs’ list of exhibits, attorneys for the various real estate industry defendants said. And in his motion asking for a mistrial, HomeServices lead counsel Robert MacGill said defense attorneys should have been given the opportunity to depose Dalton and Ferry for more context around the “vulgar” comments, or to call the podcast’s participants to testify during the trial.
“Plaintiffs’ ambush with the highly-prejudicial video is just the most recent event in a series of violative actions,” MacGill wrote in his motion. “Each and all of them result in the inescapable conclusion that this case has been mistried.”
Among the other arguments in favor of a mistrial, MacGill said Ketchmark’s mention of an Inman article to the jury encouraged them to go research the case outside the courtroom, which they are not allowed to do.
Timothy Ray, an attorney representing Keller Williams, was most concerned with Inman’s article about NAR’s recent decision to allow listing brokers to offer buyer brokers nothing in compensation.
“It’s highly prejudicial to wave it around as if it’s a legitimate news story,” Ray said.
The defendants’ attorneys also said Ketchmark referenced investigations by the Department of Justice in front of the jury “despite being ordered not to.”
Additionally, the attorneys took issue with Ketchmark’s statement that defendants should “be careful when the rabbit gets the gun,” calling that statement one of multiple “extrajudicial threats and inappropriate characterizations” of the defense attorneys in the case.
It is not uncommon for attorneys litigating major trials to make mistrial requests during the proceedings.
Despite claims of a courtroom “ambush,” however, the plaintiffs’ attorneys pushed back Wednesday against the idea that a mistrial was warranted.
“HomeServices bears a heavy burden in seeking a mistrial and has not come close to meeting it,” attorney Scott McCreight, who is also part of the plaintiffs’ legal team, wrote in a response to HomeServices’ request.
McCreight also defended airing the Dalton video, saying the defendants didn’t object to the video when it was being played in court.
“Only after the video concluded did Defendants ask to approach” the bench, McCreight wrote. “When they did, they offered no objection based on the rules of evidence. Rather, counsel for HomeServices just claimed lack of notice. The Court overruled that objection.”
McCreight said that defense attorneys never asked for the Dalton video during discovery. He also said the court’s scheduling order didn’t require the plaintiffs to include exhibits that would be used for “impeachment and rebuttal purposes.”
“For all these reasons, HomeServices’ accusations of discovery violations are without merit,” McCreight wrote. “To the extent that HomeServices asks the Court to strike testimony (or for any other relief), that request should be denied.”
Bough began responding to the situation Wednesday morning, when he polled the jurors to see whether any of them had read any news articles about the case. Each of them said, “No.”
He then told the jurors he was “instructing you to disregard any reference to Inman.”
Bough did not give the jury any instructions regarding the video Ketchmark played or DOJ investigations.
In his ruling later Wednesday, Bough said the defendants had “failed to timely object to the video exhibit” which he deemed “properly used for impeachment purposes.”
He added that “by instructing the jurors to disregard all references to the Inman article, instructing the jurors to disregard any references to the salary of any NAR executive or anyone else, and polling the jury to confirm that no juror has read or seen any recent media coverage, the Court sufficiently removed the prejudice, if any, incurred.”
In other words, Bough concluded that a mistrial was not warranted because he addressed the situation in court.
Update: This story was updated with new information about the plaintiffs’ response to the request for a mistrial, and with the judge’s decision to deny the motion for a mistrial.