Settlement objectors who have spent nearly two years challenging the sweeping deals that resolved major real estate commission lawsuits have racked up a series of losses at the 8th Circuit over the past month, culminating last week with the court’s refusal to reconsider its decision upholding the National Association of Realtors’ landmark settlement.
On Sept. 24, the appeals court denied requests from objectors Robert Friedman and Monty March for both panel rehearing and rehearing before the full court, leaving intact an Aug. 19 decision that affirmed the Sitzer | Burnett settlement and rejected seven challenges to the deal.
The latest denials came little more than a week after the court rejected three additional objector appeals on Sept. 15, saying the merits of those cases had already been “fully resolved” by its August decision.
Taken together, the rulings mark a string of setbacks for homesellers who have challenged the scope, value and fairness of settlements reached in the wave of commission litigation that followed the consequential Sitzer | Burnett verdict.
Appeals pile up
The 8th Circuit unanimously affirmed the Sitzer | Burnett settlements on Aug. 19, preserving more than $1 billion in deals as well as the industry practice changes that followed the litigation. The ruling rejected seven appeals brought by objectors who raised a range of challenges to the settlements and their releases.
Court records show those appeals were argued together in January before Judges Lavenski Smith, Ralph Erickson and Jonathan Kobes. Attorneys representing objectors, including Benny Cheatham, Robert Douglass, Douglas and Dena Fender, James Mullis, March and Friedman appeared before the panel, which issued its published opinion seven months later.
Friedman and March subsequently asked the court to reconsider the decision, arguing in separate petitions that the panel applied the wrong legal standard and improperly allowed the nationwide settlement to release claims involving the Real Estate Board of New York.
Both objectors have maintained that the alleged REBNY commission conspiracy is factually distinct from the NAR-based claims resolved through the nationwide settlement. They also renewed a due-process challenge involving U.S. District Judge Stephen Bough’s requirement that objectors represented by counsel personally appear at settlement hearings.
The 8th Circuit rejected both rehearing requests Sept. 24 without revisiting the merits of its August opinion. Its two-page order denied both panel and en banc rehearing and noted that Judges James Loken and Jane Kelly did not participate in consideration of the petitions.
More objector appeals rejected
The court had already dealt another blow to settlement objectors on Sept. 15, when the same three-judge panel ruled on three consolidated appeals brought by Mullis, Spring Way Center LLC and a group consisting of Cheatham, Douglass and the Fenders.
In a brief unpublished opinion, the 8th Circuit said the merits of the appeals had been “fully resolved” by its Aug. 19 Burnett decision and affirmed Bough’s judgment “for the reasons stated” in that ruling.
Those decisions followed a separate Sept. 1 ruling in which the 8th Circuit upheld $110.6 million in settlements reached by Compass, Redfin, The Real Brokerage and other firms in the Gibson commission case. The panel said those appeals largely mirrored issues addressed in its Sitzer | Burnett decision and incorporated the earlier ruling’s legal analysis. According to the court, those deals brought the broader settlement pool to roughly $1.02 billion.
Several of the objectors have been fighting the settlements since October 2024. Cheatham, Douglass and the Fenders challenged the amount of money provided by the Gibson deals and argued that certain local brokerages and Realtor organizations were being released without contributing to the settlement fund.
Friedman and March, meanwhile, objected on the grounds that claims arising from REBNY’s rules should not be swept into settlements resolving claims involving NAR. Mullis separately argued that homebuyer claims should be carved out of the settlements.
The rehearing denials leave the Aug. 19 Sitzer | Burnett ruling intact, with a petition to the U.S. Supreme Court now the objectors’ remaining avenue for further review.
