Whaley v. National Association of Realtors et al

Filing 82

ORDER Granting 77 Amended Motion to Stay Case. Signed by District Judge Anne R. Traum on 10/22/2024. (Copies have been distributed pursuant to the NEF - RJDG)

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1 2 3 4 5 6 7 Mark A. Hutchison (4639) Piers R. Tueller (14633) HUTCHISON & STEFFEN, PLLC 10080 West Alta Drive, Suite 200 Las Vegas, NV 89145 Tel: (702) 385-2500 Fax: (702) 385-2086 mhutchison@hutchlegal.com ptueller@hutchlegal.com Attorneys for Defendants Craig Tann Ltd. dba Huntington & Ellis A Real Estate Agency and Urban Nest Realty, LLC 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 NATHANIEL WHALEY, 12 Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:24-cv-00105-ART-MDC v. NATIONAL ASSOCIATION OF REALTORS®; LAS VEGAS REALTORS®; NEVADA REALTORS; SIERRA NEVADA REALTORS; INCLINE VILLAGE REALTORS®; ELKO COUNTY REALTORS; MESQUITE REAL ESTATE ASSOCIATION; GREATER LAS VEGAS MLS; NORTHERN NEVADA REGIONAL MLS; JASON MITCHELL GROUP; OPENDOOR BROKERAGE LLC; eXp REALTY; BERKSHIRE HATHAWAY HOMESERVICES NEVADA PROPERTIES; SIMPLY VEGAS; URBAN NEST REALTY; LUXURY HOMES OF LAS VEGAS; HUNTINGTON AND ELLIS, KELLER WILLIAMS SOUTHERN NEVADA; KELLER WILLIAMS VIP; KELLER WILLIAMS REALTY LAS VEGAS; KELLER WILLIAMS REALTY THE MARKETPLACE; ENGELS & VOLKERS LAKE TAHOE; DOUGLAS 1 AMENDED JOINT STIPULATED MOTION1 AND [PROPOSED] ORDER TO EXTEND THE STAY OF ENTIRE CASE THROUGH FINAL APPROVAL OF NATIONWIDE SETTLEMENTS This paper is styled as a stipulated joint motion pursuant to LR 7-1 rather than a stipulation for the sole reason that some Defendants have yet to be served with process and it is unclear when those named Defendants who are not signatories to this Joint Motion intend to appear in this action. The undersigned are unaware of any objection to the relief requested in this Joint Motion from any non-signatory Defendant. 1 1 3 ELLIMAN OF NEVADA; REDFIN HOMESERVICES LLC; REDFIN CORPORATION; DOES I through X; and ROE CORPORATIONS I through X, inclusive; 4 Defendants. 2 5 6 7 AND CONSOLIDATED CASE ANGELA BOYKIN, individually and on behalf of all others similarly situated, 8 9 10 Case No. 2:24-cv-00340-ART-MDC Plaintiff, v. 24 NATIONAL ASSOCIATION OF REALTORS®; UMRO REALTY CORP. d/b/a The Agency; CHASE INTERNATIONAL, INC.; DICKSON REALTY, INC.; COMPASS, INC.; eXp WORLD HOLDINGS, INC.; THE REAL ESTATE GUY INC.; BHH AFFILIATES, LLC; DOUGLAS ELLIMAN INC.; DOUGLAS ELLIMAN REALTY, LLC; HOMESMART INTERNATIONAL LLC; CRAIG TANN, LTD d/b/a HUNTINGTON & ELLIS A REAL ESTATE AGENCY; REALTY ONE GROUP; REALTY ONE GROUP EMINENCE; REDFIN CORPORATION; URBAN NEST REALTY, LLC; NEVADA REALTORS; GREATER LAS VEGAS ASSOCIATION OF REALTORS; GREATER LAS VEGAS ASSOCIATION OF REALTORS MULTIPLE LISTING SERVICE, INC.; ELKO COUNTY REALTORS; INCLINE VILLAGE REALTORS, INC.; SIERRA NEVADA REALTORS; NORTHERN NEVADA REGIONAL MULTIPLE LISTING SERVICE, INC.; MESQUITE REAL ESTATE ASSOCIATION, INC., A NEVADA NONPROFIT CORPORATION; 25 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 26 27 28 2 1 Plaintiff Nathanial Whaley and Plaintiff Angela Boykin, on behalf of themselves 2 and all others similarly situated (individually, the “Whaley Plaintiffs” and the “Boykin 3 Plaintiffs” collectively, “Plaintiffs”), and the undersigned Defendants,2 (together with 4 Plaintiffs, the “Stipulating Parties”), jointly move to extend the stay of proceedings in this 5 case through a determination on final approval of the nationwide settlement reached 6 between the National Association of REALTORS® (“NAR”) and plaintiffs in the Western 7 District of Missouri and the Northern District of Illinois (ECF No. 66-1). In support of this 8 joint stipulated motion, the Stipulating Parties provide as follows: 9 1. 10 January 15, 2024. 11 2. 12 The Whaley Plaintiffs filed a Class Action Complaint (ECF No. 1) on The Whaley Plaintiffs filed a First Amended Class Action Complaint (the “Amended Complaint”) (ECF No. 6) on January 25, 2024. 13 3. The Boykin Plaintiffs filed a Class Action Complaint on February 16, 2024. 14 4. On March 8, 2024, in the Whaley action, Defendant NAR filed a Joint 15 Stipulated Motion (“Whaley Motion”) to Stay Proceedings Pending Determination of the 16 Motion to Transfer (“MDL Motion”) by the Judicial Panel on Multidistrict Litigation (the 17 “JPML”) (ECF No. 28). 18 5. This Court granted the Whaley Motion on March 11, 2024, “stay[ing] the 19 entire case until the later of (i) 30 days after the [JPML] rules on the pending MDL Motion, 20 or (ii) 30 days after the date of service or waiver of service of the Amended Complaint on 21 such Defendant” (ECF No. 31). 6. 22 Pursuant to the Court’s Order (ECF No. 56) issued in Boykin on March 21, 23 2024, the Boykin action was administratively closed and consolidated with the Whaley 24 action. 25 26 27 28 2 Defendant Greater Las Vegas Association of REALTORS® Multiple Listing Service consents to the stay requested herein but have not yet retained local counsel and thus cannot sign this motion. 3 1 7. On March 15, 2024, the plaintiffs in Burnett v. The National Association of 2 Realtors, No. 4:19-cv-00332 (W.D. Mo.) (“Burnett”), Moehrl v. The National Association 3 of Realtors, No. 1:19-cv-01610 (N.D. Ill.) (“Moehrl”), Gibson v. National Association of 4 Realtors, No. 4:23-cv-00788 (W.D. Mo.) (“Gibson”), and Umpa v. National Association of 5 Realtors, No. 4:23-cv-00945 (W.D. Mo.) (“Umpa”), entered into a settlement agreement 6 (“NAR Settlement Agreement”), attached hereto as Exhibit A, with Defendant NAR which, 7 if approved, would constitute a nationwide settlement against the “Released Parties,” as 8 defined in the NAR Settlement Agreement (Ex. A ¶¶ 17-18). 9 8. On March 21, 2024, Defendant Compass, Inc., entered into a settlement 10 agreement with the plaintiffs in Gibson and Umpa, which would constitute a nationwide 11 settlement that may include similar claims at issue in this case. (Gibson, ECF No. 135). 12 9. On March 22, 2024, Defendant HomeSmart International LLC filed a Joint 13 Consent Motion to Stay Proceedings Pending Determination of Motion to Transfer (the 14 “MDL Motion”) by the Judicial Panel on Multidistrict Litigation (the JPML) as to the 15 Boykin Defendants (the “Boykin Motion”) (ECF No. 36). 16 10. On April 2, 2024, this Court granted the Boykin Motion, and further 17 instructed that if the MDL Motion was denied, “the parties shall promptly negotiate and 18 within 30 (thirty) days file a proposed schedule for this matter, including a schedule for 19 amended pleadings and a deadline for the defendants to file a responsive pleading or 20 otherwise respond to the operative Complaint.” (ECF No. 60). 21 11. On April 12, 2024, the JPML denied the MDL Motion (see ECF No. 62). 22 12. On April 19, 2024, the Motion for Preliminary Approval of the NAR 23 Settlement Agreement (“Preliminary Approval Motion”) as to NAR was filed in Burnett 24 (see Burnett, ECF No. 1458). 25 26 13. On April 22, 2024, the Burnett court granted the Preliminary Approval Motion (Burnett, ECF No. 1460). 27 28 4 1 14. On April 23, 2024, Defendant Realty ONE Group entered into a settlement 2 agreement with the plaintiffs in Gibson and Umpa, which, if approved, would constitute a 3 nationwide settlement that may include similar claims at issue in this case. 4 15. On April 25, 2024, Defendants HomeServices of America, BHH Affiliates 5 LLC, and HSF Affiliates LLC (collectively “the HomeServices Defendants”) executed a 6 binding term sheet to settle all claims asserted against the HomeServices Defendants. Under 7 the terms of this settlement, a Released Party includes the HomeServices Defendants, its 8 officers, directors, employees, as well as direct or indirect subsidiaries among others. If 9 approved, this would constitute a nationwide settlement that may include similar claims to 10 those at issue in this case. 11 16. On April 29, 2024, the Motion for Preliminary Approval of the Realty ONE 12 Group Settlement Agreement was filed in Gibson and Umpa, which the Court granted on 13 April 30, 2024 (see Gibson, ECF No. 163). 14 17. On April 29, 2024, Defendant Douglas Elliman filed a Notice of Pending 15 Settlement in Gibson and Umpa advising the Court that Douglas Elliman had entered into a 16 settlement agreement with the plaintiffs in those actions, which would constitute a 17 nationwide settlement that may include similar claims at issue in this case. (Gibson, ECF 18 No. 157). 19 18. On April 30, 2024, the Gibson3 court granted the Motion for Preliminary 20 Approval related to Compass’ and Douglas Elliman’s respective settlements with the 21 Gibson and Umpa plaintiffs. (Gibson, ECF No. 163). 22 19. On June 26, 2024, Defendant Redfin Corporation entered into a settlement 23 agreement with the Gibson Plaintiffs, which would constitute a nationwide settlement that 24 may include similar claims at issue in this case. On July 15, 2024, the Gibson court also 25 granted the Motion for Preliminary Approval of Redfin’s settlement with the Gibson 26 Plaintiffs. 27 28 3 On April 23, 2024, the Court in Gibson and Umpa, issued an order consolidating the Umpa action into the Gibson action. (Gibson, ECF No. 145). 5 1 20. The NAR Settlement Agreement defines certain categories of entities, 2 including, for example, NAR, REALTOR-Associate® Members, REALTOR® Member 3 Boards, REALTOR® Multiple Listing Services, Non-REALTOR® Multiple Listing 4 Services, and brokerages, and identifies what steps, if any, each category must take to 5 qualify as a “Released Party” pursuant to the NAR Settlement Agreement. (Ex. A ¶ 18). 6 7 8 9 10 11 21. Certain entities had to expressly enter into an “opt in” agreement, and comply with certain other terms, to qualify as “Released Parties.” (Ex. A ¶ 18). 22. Certain Defendants in the above-captioned litigation represent that they were not required to enter an “opt in” agreement in order to be considered “Released Parties,” (Ex. A. ¶ 18). 23. Certain other Defendants in the above-captioned litigation represent that they 12 entered an “opt in” agreement within 60 days from the date the first Motion for Preliminary 13 Approval was filed, and are required to comply with certain other terms, in order to be 14 considered “Released Parties.” (Ex. A ¶ 18(c-f)); see also id. ¶¶ 20, 66, 67). 15 24. On May 10, 2024, Defendant NAR filed a joint stipulated motion to stay 16 proceedings as to certain released defendants through final approval of the nationwide 17 settlements and to further stay the entire case for 60 days to allow the various remaining 18 defendants to determine whether they will “opt in” and otherwise comply with the NAR 19 Settlement Agreement, and therefore may also become “Released Parties” (the “Stay 20 Motion”) (ECF No. 66). 21 25. On May 13, 2024, this Court granted the Stay Motion, and further instructed 22 that any additional released parties must “file a status report, including whether the above- 23 captioned litigation should be stayed as to any new Released Parties through final approval 24 of the NAR Settlement Agreement,” no later than 14 days after the expiration of the 60-day 25 stay (ECF No. 67). This stay is scheduled to expire on July 12, 2024. 26 27 26. On June 18, 2024, the period within which a defendant could enter an “opt in” agreement expired. Prior to that date, Defendants represent to the Court that all of the 28 6 1 Defendants in this case that were required to opt in to the Settlement Agreement did in fact 2 opt in.4 3 27. On July 12, 2024, Defendant HomeSmart International, LLC 4 (“HomeSmart”), entered into a settlement agreement with the plaintiffs in Gibson, which 5 would constitute a nationwide settlement that may include similar claims at issue in this 6 case. (Gibson, ECF No. 303). 7 8 28. On July 15, 2024, the Gibson Court granted the Preliminary Approval of HomeSmart’s settlement. (Gibson, ECF No. 348). 9 29. On July 16, 2024, HomeSmart filed a Notice of Settlement and Motion to 10 Stay Case as to HomeSmart Holdings, Inc. and HomeSmart International, LLC in the 11 Gibson case. (Gibson, ECF No. 349). 12 13 30. On July 16, 2024 the Gibson Court granted HomeSmart’s Motion to Stay. (Gibson, ECF No. 351). 14 31. Plaintiffs and Nevada REALTORS®, speaking on behalf of the undersigned 15 Defendants met and conferred regarding the status of this case in light of this Court’s 16 directive to “file a status report, including whether the above-captioned litigation should be 17 stayed as to any new Released Parties through final approval of the NAR Settlement 18 Agreement and/or propose a litigation and briefing schedule for any responses to the 19 Complaints and/or amended complaints for any remaining Defendants in the above- 20 captioned litigation who have not become Released Parties.” (ECF No. 67). 32. 21 Given the current litigation landscape, Plaintiffs and the Defendants have 22 agreed that it is in the interest of judicial efficiency for this Court to modify the current 23 deadlines set forth in its May 13, 2024, Order (ECF No. 67), and enter an Order to: 24 25 26 27 28 4 The Defendants have not provided the Whaley or Boykin Plaintiffs with the records substantiating these “opt-ins.” Similarly, the Whaley and Boykin Plaintiffs are not able to stipulate that any additional actions to comply with the terms of the NAR Settlement have been undertaken by or on behalf of the Defendants and Plaintiffs reserve their rights to file a motion to lift the stay at any time should any facts or circumstances come to light that cause Defendants’ representations to be in dispute. 7 1 (1) Extend the stay as to HomeSmart through a decision on final approval of its 2 settlement agreement; 3 (2) Extend the stay as to all remaining Defendants through a decision on final 4 approval of the NAR Settlement Agreement; 5 (3) Order that no later than 14 days after the expiration of the period of appeal 6 from an order with respect to the final approval of the NAR Settlement 7 Agreement, the remaining parties would file a Joint Status Report informing 8 the court of the outcome of the motion for final approval of the NAR 9 Settlement Agreement, and/or propose a litigation and briefing schedule for 10 any responses to the Complaints and/or amended complaints for any 11 remaining Defendants in the above-captioned litigation who have not been 12 released. 13 33. Defendants do not waive any rights to arbitration or other forms of 14 alternative dispute resolution, and expressly reserve and assert, and do not waive, their 15 binding arbitration rights. Defendants reserve the right to file formal motions asserting these 16 rights at each phase of litigation.5 17 34. Defendants do not waive any rights to enforce provisions of any applicable 18 agreements including class waiver provisions and/or limitations periods, and expressly 19 reserve and assert, and do not waive, their binding and enforceable rights. Defendants 20 reserve the right to file formal motions asserting these rights at each phase of litigation. 35. 21 Plaintiffs and the proposed class expressly reserve all rights available to them 22 in this or any other proceeding, including the right to move to lift the stay provided herein 23 at any time. Plaintiffs’ agreement to stay this action as to certain Defendants who may have 24 not opted-in or otherwise settled claims against them in this or related proceedings is solely 25 for purposes of this Action in the interests of judicial economy. 26 27 28 5 Defendants also do not waive and expressly reserve any rights as to any personal jurisdiction arguments. 8 1 DATED this 26th day of July, 2024. DATED this 26th day of July, 2024. 2 BEN’S LAW HUTCHISON & STEFFEN, PLLC By: /s/ Stefany “Miley” Tewell Stefany “Miley” Tewell, Bar No. 6144 Ben Lehavi, Bar No. 14564 5940 South Rainbow Boulevard Las Vegas, NV 89118 (702) 518-9236 By: /s/ Piers R. Tueller Mark A. Hutchison, Bar No. 4639 Piers R. Tueller, Bar No. 14633 10080 West Alta Drive, Suite 200 Las Vegas, NV 89145 (702) 385-2500 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Defendant Craig Tann Ltd. d/b/a Huntington & Ellis A Real Estate Agency and Urban Nest Realty, LLC DATED this 26th day of July, 2024. SCHWARTZ LAW, PLLC By: /s/ Samuel A. Schwartz Samuel A. Schwartz 601 East Bridger Avenue Las Vegas, NV 89101 (702) 802-2207 SASchwartz@nvfirm.com Attorneys for the Whaley Plaintiff and the Class DATED this 26th day of July, 2024. DATED this 26th day of July, 2024. MCDONALD CARANO LLP By: /s/ Matthew C. Addison Matthew C. Addison, Bar No. 4201 100 W. Liberty St., 10th Floor Reno, NV 89501 (775) 788-2000 Attorney for Defendant Northern Nevada Regional Multiple Listing Service, Inc. ALBRIGHT, STODDARD, WARNICK & ALBRIGHT By: /s/ Daniel R. Ormsby G. Mark Albright, Bar No. 1394 Daniel R. Ormsby, Bar No. 14595 801 South Rancho Drive, Suite D-4 Las Vegas, NV 89106 (702) 384-7111 DATED this 26th day of July, 2024. FREEMAN MATHIS & GARY, LLP By: /s/ Scott Eric Anderson Michael M. Edwards, Bar No. 6281 770 East Warm Springs Road Suite 360 Las Vegas, NV 89119 Tel: (725) 258.7360 Fax: (833) 336.2131 Michael.Edwards@fmglaw.com Matthew B. George (pro hac vice) Blair E. Reed (pro hac vice) KAPLAN FOX & KILSHEIMER LLP 1999 Harrison Street, Suite 1560 Oakland, CA 94612 (415) 772-4700 Frederic S. Fox (pro hac vice) Matthew P. McCahill (pro hac vice) Jeffrey P. Campisi (pro hac vice) KAPLAN FOX & KILSHEIMER LLP 800 Third Avenue, 38th Floor New York, NY 10022 (212) 687-1980 Scott Eric Anderson* Jacob S. Madsen* Matthew N. Foree* Cameron N. Regnery* 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Brandon Fox (pro hac vice) KAPLAN FOX & KILSHEIMER LLP 1750 North Bayshore Drive Miami, FL 33132 (914) 924-1038 FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway, Suite 1600 Atlanta, GA 30339 Tel: (770) 818-0000 Fax: (833) 330-3669 scott.anderson@fmglaw.com jacob.madsen@fmglaw.com mforee@fmglaw.com cameron.regnery@fmglaw.com Julie Pettit (pro hac vice) David B. Urteago (pro hac vice) THE PETTIT LAW FIRM 2101 Cedar Springs, Suite 1540 Dallas, TX 75201 (214) 329-0151 Michael K. Hurst (pro hac vice) Jessica Cox (pro hac vice) Yaman Desai (pro hac vice) LYNN PINKER HURST & SCHWEGMANN, LLP 2100 Ross Avenue, Suite 2700 Dallas, TX 75201 (214) 981-3839 *Admitted Pro Hac Vice Counsel for HomeSmart International, LLC DATED this 26th day of July, 2024. MCDONALD CARANO LLP Attorneys for the Boykin Plaintiff and the By: /s/ Adam Hosmer-Henner Proposed Classes Adam Hosmer-Henner 100 W. Liberty Street, 10th Floor Reno, NV 89501 ahosmerhenner@mcdonaldcarano.com 15 Attorney for Defendant Dickson Realty, Inc. 16 17 18 DATED this 26th day of July, 2024. ARMSTRONG TEASDALE LLP 19 By: /s/ Brandon P. Johansson Brandon P. Johansson, Bar No. 12003 7160 Rafael Rivera Way, Suite 320 Las Vegas, NV 89113 Tel: (702) 678-5070 Fax: (702) 878-9995 bjohansson@atllp.com 20 21 22 23 24 Attorney for Defendants eXp World Holdings, Inc. and eXp Realty, LLC 25 26 27 28 10 1 DATED this 26th day of July, 2024. 2 FARELLA BRAUN & MARTEL LLP 3 By: /s/ Christopher C. Wheeler Christopher C. Wheeler Tim Horgan-Kobelski One Bush Street, Suite 900 San Francisco, CA 94104 Tel: (415) 954-4400 Fax: (415) 954-4480 tkobelski@fbm.com cwheeler@fbm.com 4 5 6 7 8 Attorneys for Defendant Chase International, Inc. 9 10 11 12 13 14 ORDER Dated this 22nd day of October, 2024. IT IS SO ORDERED: 15 16 17 _____________________________________ UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 11

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