HomeServices of America, the largest residential real estate brokerage in the United States and owned by Warren E. Buffett’s Berkshire Hathaway Energy, has agreed to settle a series of lawsuits that could change the way commissions are paid to real estate agents.
On Thursday, the brokerage signed off on adding $250 million to the mounting pile of damages won by home sellers who have successfully sued several brokerages and the National Association of Realtors over what they described as inflated commissions. The New York Times obtained a copy of the signed agreement.
Industry insiders have been anticipating the HomeServices settlement since March 15, when N.A.R., an influential trade group with 1.5 million members, agreed to settle the lawsuits that claimed the group had violated antitrust laws and had conspired to fix the rates that real estate agents charge their clients. That settlement received preliminary approval from a federal judge on Tuesday, and now N.A.R. will pay $418 million in damages and significantly change its rules on agent commissions and the databases, accessible only by those who hold membership to N.A.R. subsidiary groups, where homes are listed for sale. N.A.R. argued in court that it never operated a conspiracy around commissions, and continues to say that the home sellers’ allegations that the organization’s rules effectively set commission rates are unfounded.
The settlement will introduce competition to the market for real estate commissions, driving down the fees that consumers are required to pay when selling a home and eventually lowering home prices across the board as a result, some industry analysts say.
For more than a century, N.A.R. has been an indomitable force in the real estate industry. But the group had been under pressure to settle legal claims since October, when a jury in Missouri sided with a group of home sellers who argued they had been forced to pay their real estate agents exorbitant fees. That verdict included an order for damages of at least $1.8 billion. U.S. antitrust law allows plaintiffs to seek treble damages, which means that amount potentially stood to be tripled to $5.4 billion. More than a dozen additional claims from home sellers across the country have also been filed against the group.
But N.A.R. was not the only entity named in the lawsuits. Anywhere Real Estate, RE/MAX and Keller Williams all hatched their own settlement deals, for a total of $208.5 million, before N.A.R. inked its agreement. A number of additional plaintiffs have also settled, in several deals that have not been publicly disclosed, attorneys for the plaintiffs say. With Thursday’s settlement deal, the total amount of damages now set to be awarded in commission lawsuits in the United States is past the $1 billion mark.
Michael Ketchmark, the lawyer on the Missouri case who has been leading settlement negotiations, hailed the deal but signaled that he planned to continue to pursue legal claims against HomeServices’ parent company, Berkshire Hathaway Energy, a path that is carved out in the language of the settlement.
“The long-entrenched mandatory compensation rule is finally dead,” he said in a text message. “A jury of ordinary Missourians spoke, and the industry heard their voice. This settlement allows us to continue to pursue our nationwide case against Berkshire Hathaway Energy and a handful of large corporate brokers.”
HomeServices was the last brokerage named as a defendant in the Missouri case and still vowing to fight the claims, and in a motion filed March 18, attorneys for the plaintiffs asked that it pay $4.7 billion — triple the awarded damages, minus the settlement amounts of N.A.R. and the other brokerages.
Representatives from HomeServices were not immediately available for comment.
The agreement, which is still subject to court approval, does not close the door on Mr. Buffett’s legal tussles within the real estate industry. HomeServices’ parent company, Berkshire Hathaway Energy, remains ensnared in a separate, and potentially more sweeping, lawsuit over real estate commissions.
Last month, three home sellers who filed a nationwide antitrust lawsuit in October amended their complaint to add Berkshire Hathaway Energy, the unit that controls HomeServices of America, to its string of defendants that include Compass, eXp World Holdings, Douglas Elliman and Redfin. Compass settled for nearly $58 million last month, but the other brokerages have yet to make a move.
And as part of Mr. Buffett’s multibillion-dollar empire, Berkshire Hathaway Energy is by far the biggest target.
The suit alleges that Berkshire Hathaway Energy played upon Mr. Buffett’s reputation to lure in customers and bolster business, and claims that home sellers working with representatives of Berkshire Hathaway were defrauded by as much as $4.2 billion in 2023.
N.A.R.’s legal battles are not resolved, either. This month, a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled that the Justice Department can reopen an antitrust investigation into the powerful group, presenting the government with an opportunity to scrutinize the rules on agent compensation that N.A.R. has long enforced over the industry.
With the flurry of settlements, “there’s an implicit recognition that these were not pro-consumer rules,” said Randy Airst, chief executive of the real estate analysis firm Exceedant.
Because HomeServices is part of Mr. Buffett’s empire, it did not face the same financial constraints as the other brokerages involved in the lawsuits, Mr. Airst said, so it was not under the same pressure to settle. The agreement, he added, points to a shift in public sentiment over commissions.
“We live in a different world now,” he said.
