One of the objectors who challenged the 8th Circuit’s affirmance of the Sitzer | Burnett commission settlement on Aug. 19 is asking the court to take another look.
Robert Friedman, one of the objectors who challenged the Sitzer | Burnett settlement on appeal, filed a petition Sept. 1 seeking either panel rehearing or rehearing en banc, arguing that the appeals court used the wrong legal standard and improperly allowed the nationwide settlement to release separate commission claims involving the Real Estate Board of New York (REBNY).
Friedman’s latest challenge focuses largely on whether claims involving REBNY and its Residential Listing Service in New York City arise from the same underlying factual basis as the claims resolved through the nationwide Sitzer | Burnett settlement.
His petition argues that the panel applied a deferential abuse-of-discretion standard rather than considering anew whether the REBNY claims and the settlement claims arise from an “identical factual predicate” — a key question in determining how broadly a class-action settlement can release claims.
“No deference under an abuse of discretion standard is thus warranted in reviewing a District Court’s application of the identical factual predicate doctrine,” Friedman writes in his petition. “For this reason, the panel’s decision conflicts with the well-settled principle that the preclusive effect of a settlement agreement is a question this Court should have reviewed de novo.”
Friedman also points to earlier representations from REBNY and several New York brokerage defendants that REBNY operates independently of the National Association of Realtors and maintains its own rules and code of ethics. He argues those distinctions make the New York claims materially different from those released through the nationwide settlement.
The petition also renews a due-process challenge involving U.S. District Judge Stephen Bough’s requirement that objectors personally appear at settlement hearings.
The filing comes within two weeks of the ruling — and near the close of the window for seeking rehearing — after a three-judge 8th Circuit panel unanimously affirmed the Sitzer | Burnett settlement, preserving more than $1 billion in commission settlements and the practice changes that followed the litigation.
Friedman faces a high bar — rehearing en banc is an extraordinary form of appellate review generally reserved for conflicts within a circuit or questions of exceptional importance, rather than a routine second look at a panel decision.
The filing itself does not mean the 8th Circuit has agreed to reconsider its Aug. 19 ruling. But it keeps the appellate process active for now and represents one of the remaining avenues for objectors seeking to challenge the settlement before it reaches final appellate resolution.
