The eXp and Weichert commission lawsuit settlements are facing yet another hurdle. The two firms will have to provide representatives who are able to testify regarding the settlement negotiations undertaken by both brokerage defendants in the Hooper suit, which led to their contested settlements.
The videotaped depositions will occur next Wednesday and Friday.
These depositions are in response to the Gibson plaintiffs’ intervention in the Hooper suit, in which they alleged that the companies engaged in “reverse auctions” to negotiate their “sweetheart deal” settlements. eXp, which announced its settlement in October, is settling the commission lawsuits for $34 million, while Weichert, which settled in November, has agreed to pay $8.5 million. The Gibson plaintiffs feel that these settlement amounts are far too low.
According to a filing, the depositions “will be taken before a Notary Public or some other officer authorized by law to administer oaths for use at trial.”
In their depositions, the representatives from both companies will be asked about nine topics:
- Communications between eXp/Weichert and any mediator used or considered in connection with any settlement negotiations in the Hooper case.
- Communications between eXp/Weichert and plaintiffs’ counsel in the Hooper case, including but not limited to all substantive settlement communications, scheduling communications, mediation statements, financial documents, and draft and final settlement agreements.
- Communications between eXp and Weichert regarding any settlement negotiations or agreements in the Hooper case.
- Any documents provided to plaintiffs’ counsel in the Hooper case in advance of mediation.
- Any binding term sheet executed in the Hooper case.
- The Settlement Agreement executed in the Hooper suit, including but not limited to the amount agreed to be paid.
- Any disclosures to any mediator and/or plaintiffs’ counsel in the Hooper case regarding settlement negotiations actually conducted or that might be conducted with plaintiffs’ counsel in the Gibson suit, Umpa suit, or any other case alleging an anti-competitive agreement to adopt, enforce, or maintain a rule requiring cooperative compensation offers on a listing service.
- Settlement communications with plaintiffs’ counsel in any case, other than the Hooper suit, that alleges an anti-competitive agreement to adopt, enforce, or maintain a rule requiring cooperative compensation offers on a listing service.
- Communications with any mediator in any case, other than Hooper, that alleges an anti-competitive agreement to adopt, enforce or maintain a rule requiring cooperative compensation offers on a listing service.
The Hooper suit is currently not the only commission lawsuit seeing some action. On Monday, Judge Stephen R. Bough, who is overseeing the Gibson suit, denied William Raveis’ and Berkshire Hathaway Energy’s motions to compel arbitration and stay the case. The two defendants filed these motions in late January arguing that the members of the proposed Gibson plaintiff class be forced to follow the arbitration agreements they had signed with the companies as home sellers.
Bough denied the motion on the grounds that the suit has yet to receive class certification and due to the fact that the two defendants did not sign the agreements themselves.
“As this Court and the Eighth Circuit have previously held, nonparties cannot enforce contracts and therefore cannot compel arbitration,” Bough wrote in his ruling.
In addition to these domestic commission lawsuit developments, across the border to the north, RE/MAX has settled the two commission lawsuits it was named in, in Canada. The suits, known as Sunderland and McFall, contained nearly identical claims to the original commission lawsuits in the U.S. As part of the settlement, RE/MAX has agreed to pay $7.8 million Canadian dollars, or roughly $5.5 million U.S. dollars and make unspecified business practice changes. RE/MAX has denied any wrongdoing as part of the settlement.
