Whaley v. National Association of Realtors et al
Filing
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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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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
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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NATHANIEL WHALEY,
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Plaintiff,
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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
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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.
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ELLIMAN OF NEVADA; REDFIN
HOMESERVICES LLC; REDFIN
CORPORATION; DOES I through X; and ROE
CORPORATIONS I through X, inclusive;
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Defendants.
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AND CONSOLIDATED CASE
ANGELA BOYKIN, individually and on behalf
of all others similarly situated,
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Case No. 2:24-cv-00340-ART-MDC
Plaintiff,
v.
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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;
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Defendants.
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Plaintiff Nathanial Whaley and Plaintiff Angela Boykin, on behalf of themselves
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and all others similarly situated (individually, the “Whaley Plaintiffs” and the “Boykin
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Plaintiffs” collectively, “Plaintiffs”), and the undersigned Defendants,2 (together with
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Plaintiffs, the “Stipulating Parties”), jointly move to extend the stay of proceedings in this
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case through a determination on final approval of the nationwide settlement reached
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between the National Association of REALTORS® (“NAR”) and plaintiffs in the Western
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District of Missouri and the Northern District of Illinois (ECF No. 66-1). In support of this
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joint stipulated motion, the Stipulating Parties provide as follows:
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1.
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January 15, 2024.
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2.
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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.
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3.
The Boykin Plaintiffs filed a Class Action Complaint on February 16, 2024.
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4.
On March 8, 2024, in the Whaley action, Defendant NAR filed a Joint
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Stipulated Motion (“Whaley Motion”) to Stay Proceedings Pending Determination of the
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Motion to Transfer (“MDL Motion”) by the Judicial Panel on Multidistrict Litigation (the
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“JPML”) (ECF No. 28).
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5.
This Court granted the Whaley Motion on March 11, 2024, “stay[ing] the
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entire case until the later of (i) 30 days after the [JPML] rules on the pending MDL Motion,
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or (ii) 30 days after the date of service or waiver of service of the Amended Complaint on
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such Defendant” (ECF No. 31).
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Pursuant to the Court’s Order (ECF No. 56) issued in Boykin on March 21,
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2024, the Boykin action was administratively closed and consolidated with the Whaley
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action.
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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.
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7.
On March 15, 2024, the plaintiffs in Burnett v. The National Association of
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Realtors, No. 4:19-cv-00332 (W.D. Mo.) (“Burnett”), Moehrl v. The National Association
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of Realtors, No. 1:19-cv-01610 (N.D. Ill.) (“Moehrl”), Gibson v. National Association of
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Realtors, No. 4:23-cv-00788 (W.D. Mo.) (“Gibson”), and Umpa v. National Association of
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Realtors, No. 4:23-cv-00945 (W.D. Mo.) (“Umpa”), entered into a settlement agreement
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(“NAR Settlement Agreement”), attached hereto as Exhibit A, with Defendant NAR which,
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if approved, would constitute a nationwide settlement against the “Released Parties,” as
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defined in the NAR Settlement Agreement (Ex. A ¶¶ 17-18).
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8.
On March 21, 2024, Defendant Compass, Inc., entered into a settlement
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agreement with the plaintiffs in Gibson and Umpa, which would constitute a nationwide
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settlement that may include similar claims at issue in this case. (Gibson, ECF No. 135).
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On March 22, 2024, Defendant HomeSmart International LLC filed a Joint
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Consent Motion to Stay Proceedings Pending Determination of Motion to Transfer (the
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“MDL Motion”) by the Judicial Panel on Multidistrict Litigation (the JPML) as to the
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Boykin Defendants (the “Boykin Motion”) (ECF No. 36).
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On April 2, 2024, this Court granted the Boykin Motion, and further
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instructed that if the MDL Motion was denied, “the parties shall promptly negotiate and
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within 30 (thirty) days file a proposed schedule for this matter, including a schedule for
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amended pleadings and a deadline for the defendants to file a responsive pleading or
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otherwise respond to the operative Complaint.” (ECF No. 60).
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11.
On April 12, 2024, the JPML denied the MDL Motion (see ECF No. 62).
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12.
On April 19, 2024, the Motion for Preliminary Approval of the NAR
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Settlement Agreement (“Preliminary Approval Motion”) as to NAR was filed in Burnett
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(see Burnett, ECF No. 1458).
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On April 22, 2024, the Burnett court granted the Preliminary Approval
Motion (Burnett, ECF No. 1460).
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14.
On April 23, 2024, Defendant Realty ONE Group entered into a settlement
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agreement with the plaintiffs in Gibson and Umpa, which, if approved, would constitute a
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nationwide settlement that may include similar claims at issue in this case.
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On April 25, 2024, Defendants HomeServices of America, BHH Affiliates
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LLC, and HSF Affiliates LLC (collectively “the HomeServices Defendants”) executed a
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binding term sheet to settle all claims asserted against the HomeServices Defendants. Under
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the terms of this settlement, a Released Party includes the HomeServices Defendants, its
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officers, directors, employees, as well as direct or indirect subsidiaries among others. If
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approved, this would constitute a nationwide settlement that may include similar claims to
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those at issue in this case.
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16.
On April 29, 2024, the Motion for Preliminary Approval of the Realty ONE
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Group Settlement Agreement was filed in Gibson and Umpa, which the Court granted on
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April 30, 2024 (see Gibson, ECF No. 163).
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On April 29, 2024, Defendant Douglas Elliman filed a Notice of Pending
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Settlement in Gibson and Umpa advising the Court that Douglas Elliman had entered into a
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settlement agreement with the plaintiffs in those actions, which would constitute a
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nationwide settlement that may include similar claims at issue in this case. (Gibson, ECF
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No. 157).
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18.
On April 30, 2024, the Gibson3 court granted the Motion for Preliminary
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Approval related to Compass’ and Douglas Elliman’s respective settlements with the
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Gibson and Umpa plaintiffs. (Gibson, ECF No. 163).
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19.
On June 26, 2024, Defendant Redfin Corporation entered into a settlement
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agreement with the Gibson Plaintiffs, which would constitute a nationwide settlement that
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may include similar claims at issue in this case. On July 15, 2024, the Gibson court also
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granted the Motion for Preliminary Approval of Redfin’s settlement with the Gibson
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Plaintiffs.
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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).
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20.
The NAR Settlement Agreement defines certain categories of entities,
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including, for example, NAR, REALTOR-Associate® Members, REALTOR® Member
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Boards, REALTOR® Multiple Listing Services, Non-REALTOR® Multiple Listing
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Services, and brokerages, and identifies what steps, if any, each category must take to
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qualify as a “Released Party” pursuant to the NAR Settlement Agreement. (Ex. A ¶ 18).
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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).
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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).
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Certain other Defendants in the above-captioned litigation represent that they
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entered an “opt in” agreement within 60 days from the date the first Motion for Preliminary
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Approval was filed, and are required to comply with certain other terms, in order to be
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considered “Released Parties.” (Ex. A ¶ 18(c-f)); see also id. ¶¶ 20, 66, 67).
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On May 10, 2024, Defendant NAR filed a joint stipulated motion to stay
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proceedings as to certain released defendants through final approval of the nationwide
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settlements and to further stay the entire case for 60 days to allow the various remaining
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defendants to determine whether they will “opt in” and otherwise comply with the NAR
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Settlement Agreement, and therefore may also become “Released Parties” (the “Stay
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Motion”) (ECF No. 66).
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On May 13, 2024, this Court granted the Stay Motion, and further instructed
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that any additional released parties must “file a status report, including whether the above-
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captioned litigation should be stayed as to any new Released Parties through final approval
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of the NAR Settlement Agreement,” no later than 14 days after the expiration of the 60-day
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stay (ECF No. 67). This stay is scheduled to expire on July 12, 2024.
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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
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Defendants in this case that were required to opt in to the Settlement Agreement did in fact
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opt in.4
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On
July
12,
2024,
Defendant
HomeSmart
International,
LLC
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(“HomeSmart”), entered into a settlement agreement with the plaintiffs in Gibson, which
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would constitute a nationwide settlement that may include similar claims at issue in this
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case. (Gibson, ECF No. 303).
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On July 15, 2024, the Gibson Court granted the Preliminary Approval of
HomeSmart’s settlement. (Gibson, ECF No. 348).
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29.
On July 16, 2024, HomeSmart filed a Notice of Settlement and Motion to
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Stay Case as to HomeSmart Holdings, Inc. and HomeSmart International, LLC in the
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Gibson case. (Gibson, ECF No. 349).
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On July 16, 2024 the Gibson Court granted HomeSmart’s Motion to Stay.
(Gibson, ECF No. 351).
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Plaintiffs and Nevada REALTORS®, speaking on behalf of the undersigned
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Defendants met and conferred regarding the status of this case in light of this Court’s
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directive to “file a status report, including whether the above-captioned litigation should be
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stayed as to any new Released Parties through final approval of the NAR Settlement
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Agreement and/or propose a litigation and briefing schedule for any responses to the
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Complaints and/or amended complaints for any remaining Defendants in the above-
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captioned litigation who have not become Released Parties.” (ECF No. 67).
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Given the current litigation landscape, Plaintiffs and the Defendants have
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agreed that it is in the interest of judicial efficiency for this Court to modify the current
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deadlines set forth in its May 13, 2024, Order (ECF No. 67), and enter an Order to:
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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.
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(1) Extend the stay as to HomeSmart through a decision on final approval of its
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settlement agreement;
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(2) Extend the stay as to all remaining Defendants through a decision on final
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approval of the NAR Settlement Agreement;
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(3) Order that no later than 14 days after the expiration of the period of appeal
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from an order with respect to the final approval of the NAR Settlement
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Agreement, the remaining parties would file a Joint Status Report informing
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the court of the outcome of the motion for final approval of the NAR
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Settlement Agreement, and/or propose a litigation and briefing schedule for
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any responses to the Complaints and/or amended complaints for any
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remaining Defendants in the above-captioned litigation who have not been
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released.
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33.
Defendants do not waive any rights to arbitration or other forms of
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alternative dispute resolution, and expressly reserve and assert, and do not waive, their
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binding arbitration rights. Defendants reserve the right to file formal motions asserting these
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rights at each phase of litigation.5
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34.
Defendants do not waive any rights to enforce provisions of any applicable
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agreements including class waiver provisions and/or limitations periods, and expressly
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reserve and assert, and do not waive, their binding and enforceable rights. Defendants
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reserve the right to file formal motions asserting these rights at each phase of litigation.
35.
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Plaintiffs and the proposed class expressly reserve all rights available to them
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in this or any other proceeding, including the right to move to lift the stay provided herein
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at any time. Plaintiffs’ agreement to stay this action as to certain Defendants who may have
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not opted-in or otherwise settled claims against them in this or related proceedings is solely
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for purposes of this Action in the interests of judicial economy.
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Defendants also do not waive and expressly reserve any rights as to any personal
jurisdiction arguments.
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DATED this 26th day of July, 2024.
DATED this 26th day of July, 2024.
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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
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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*
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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
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Attorney for Defendant Dickson Realty,
Inc.
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DATED this 26th day of July, 2024.
ARMSTRONG TEASDALE LLP
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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
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Attorney for Defendants eXp World
Holdings, Inc. and eXp Realty, LLC
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DATED this 26th day of July, 2024.
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FARELLA BRAUN & MARTEL LLP
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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
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Attorneys for Defendant
Chase International, Inc.
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ORDER
Dated this 22nd day of October, 2024.
IT IS SO ORDERED:
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_____________________________________
UNITED STATES DISTRICT JUDGE
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