Antitrust Law Daily Wrap Up, ANTITRUST—8th Cir.: Eighth Circuit upholds $1 billion NAR broker-commission antitrust settlement, (Aug 20, 2026)

By Martin A. Steinberg, J.D.

Objectors argued that the settlement improperly expanded the class nationwide and released buyer, seller, and REBNY-related claims that did not share the same factual predicate as the Missouri litigation.

The U.S. Court of Appeals for the Eighth Circuit affirmed approval of a nationwide class-action settlement resolving claims that the National Association of Realtors and major real estate brokerages conspired to inflate buyer-broker commissions through rules governing multiple listing services. The court rejected objections that the settlement impermissibly expanded the class beyond the original Missouri sellers, improperly released home-buyer and New York REBNY-related claims, inadequately compensated certain class members, and failed to satisfy Rule 23. It held that the released claims shared a common factual predicate involving allegedly anticompetitive commission rules, that the class was adequately represented, and that the settlement’s monetary relief and industry-wide practice changes were fair, reasonable, and adequate. The court also upheld the one-third attorneys’ fee award, the decision to defer a detailed distribution plan, the fairness-hearing procedures, the district court’s adoption of a proposed approval order, and the denial of an untimely intervention motion (Burnett v. National Association of Realtors, No. 24-3444 (8th Cir. Aug. 19, 2026)).

Background. For decades, many U.S. home sales involved real estate brokers using Multiple Listing Services (MLSs). Most MLSs are affiliated with the National Association of Realtors (NAR) and were required to follow NAR’s Cooperative Compensation Rule, which obligated seller brokers to offer compensation to buyer brokers through MLS listings. Sellers typically paid total commissions of about 5–6% of the sale price, split between the seller’s and buyer’s brokers. Plaintiffs alleged that this structure reduced price competition and caused inflated commissions and home prices.

In 2019, Missouri home sellers led by Rhonda Burnett sued NAR and several major brokerage franchisors under Section 1 of the Sherman Act. A jury found defendants liable in October 2023 and awarded $1.785 billion in damages, subject to trebling. Similar litigation was pending or followed elsewhere, including Moehrl, Gibson, and Umpa, as well as New York cases challenging comparable rules imposed by the Real Estate Board of New York (REBNY).

While post-trial motions were pending, the parties negotiated a nationwide settlement. NAR agreed to pay $418 million and HomeServices $250 million. Other brokerages could opt in and make additional contributions, bringing the total settlement fund across all defendants to more than $1 billion. NAR also agreed to eliminate the Cooperative Compensation Rule and adopt practice changes requiring greater disclosure and negotiation of buyer-broker compensation. In return, the settlement broadly released claims arising from residential home sales involving NAR and non-NAR MLSs nationwide.

Notice reached more than 99% of the class; 39 class members opted out, 36 objected, and more than two million claims were submitted. After a November 2024 fairness hearing, the district court certified the nationwide settlement class and approved the settlement as fair, reasonable, and adequate. Seven groups of objectors and would-be intervenors appealed, challenging, among other things, the nationwide scope of the release, treatment of buyer and REBNY claims, adequacy of consideration and representation, fairness-hearing procedures, attorneys’ fees, and denial of intervention.

Injunctive relief standing. Objector Tanya Monestier argued that the named plaintiffs lacked Article III standing to obtain injunctive relief because the class consisted of sellers injured by past home sales. The Eighth Circuit disagreed. At least one named class representative must have standing, and the record showed an ongoing threat of injury because allegedly inflated home prices would continue absent changes to defendants’ practices. Sellers and buyers could remain subject to costs generated by the challenged commission structure, including when using brokers operating under the allegedly conspiratorial rules.

The settlement’s practice changes also satisfied redressability because they directly addressed the challenged rules. The court therefore concluded that the class representatives had demonstrated a sufficiently real threat of future injury and that the injunctive relief could alleviate that harm.

Settlement fairness, reasonableness, and adequacy. The appellants challenged the district court’s methodology for evaluating whether the settlement was fair, reasonable, and adequate. The Eighth Circuit explained that its traditional framework stated in Van Horn v. Trickey, 840 F.2d 604, 606–07 (8th Cir. 1988), considered the merits of plaintiffs’ case compared with the settlement, defendants’ financial condition, the complexity and expense of further litigation, and opposition to the settlement. Amendments to Rule 23(e)(2) in 2018, however, established four express considerations: adequacy of class representation, arm’s-length negotiation, adequacy of relief, and equitable treatment of class members.

The court held that the Rule 23(e)(2) factors are now the governing considerations. The district court properly applied them and also considered the traditional Van Horn factors. Although the latter analysis was not required, it was not erroneous.

Settlement satisfied Rule 23. The court rejected challenges to the settlement’s broad release of claims. Several appellants argued that buyer claims, claims involving New York’s REBNY rules, and other nationwide claims differed materially from the Missouri seller claims originally litigated. The Eighth Circuit applied the identical-factual-predicate doctrine, under which a settlement may release claims not expressly asserted in the litigation when they arise from the same common nucleus of operative facts.

The court concluded that the released claims shared that factual predicate: allegedly conspiratorial rules requiring or facilitating buyer-broker compensation that increased commissions and home prices. Although buyers and sellers occupied different positions, several named plaintiffs had both bought and sold homes during the class period, and the settlement expressly released claims held “as a seller, buyer, or otherwise.” The REBNY claims likewise involved rules operating similarly to NAR’s rules by requiring listings to include offers of buyer-broker compensation.

The court also rejected the argument that HomeServices franchisees received releases without providing consideration. Although franchisees did not make separate financial contributions, they were subject to the settlement’s required practice changes. According to the district court, no brokerage obtained a release without becoming subject to those changes.

The appellate court also found that nationwide expansion of the class was proper. Plaintiffs conducted extensive discovery concerning the alleged nationwide conspiracy, and the district court found that a nationwide settlement and release were necessary to resolve the claims. The Eighth Circuit noted that it had previously affirmed nationwide settlements even where the originally certified class was geographically narrower.

The court further upheld the district court’s finding that class counsel adequately represented the class. Counsel were experienced in complex antitrust class actions, vigorously prosecuted the case through trial, negotiated at arm’s length, and obtained both substantial monetary relief and significant practice changes. The asserted differences between buyer and seller claims did not establish the kind of intraclass conflict requiring separate representation under Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). Unlike those cases, this settlement followed years of contentious litigation, discovery, trial preparation, and an actual jury verdict.

The court also rejected arguments that the settlement itself violated antitrust law and that the district court improperly ignored the Department of Justice’s concerns about certain practice changes. The district court addressed the DOJ’s submission at the fairness hearing, and the appellants failed to establish that its failure to discuss those concerns in the approval order constituted legal error. The court ultimately held that class members were treated equitably because monetary payments would account for commissions paid, while the practice changes applied broadly to the class.

Presumption of fairness. The court agreed that Rule 23(e)(2) requires an independent evaluation of the enumerated factors and discussed authority rejecting a presumption that an arm’s-length settlement is necessarily fair. But it found no reversible error because the district court expressly stated that it considered the settlement fair, reasonable, and adequate regardless of any presumption favoring settlement.

Attorney fees. The court affirmed the $333 million attorney fees award, representing one-third of the settlement fund. The district court used the percentage-of-the-benefit method, which the appellate court described as particularly appropriate in common-fund cases. A one-third award fell within the range previously approved in Eighth Circuit class actions and was justified by the substantial monetary recovery and industry practice changes achieved by class counsel.

Distribution method. The court rejected appellants' argument that the settlement should not have received final approval without a detailed plan for distributing the settlement fund. It explained that approval of a settlement and approval of a plan of allocation are conceptually distinct and that, particularly in large class actions, courts may prudently use a two-stage process in which the distribution formula is finalized after settlement approval.

The class notice adequately described the claims being resolved, the aggregate settlement amounts, and the relief obtained. Rule 23 did not require establishing individual award calculations before final approval.

The fairness hearing. Several appellants challenged the district court’s requirement that objectors and their attorneys attend the fairness hearing in person. Although the court warned that failure to appear could result in waiver, it allowed counsel for absent objectors to argue and addressed every objection on the merits in its final order.

The Eighth Circuit held that due process requires adequate notice and an opportunity to present objections, not a particular form of oral participation. Rule 23 requires a fairness hearing but does not require oral argument by objectors. Because the district court considered the objections substantively, the proceedings satisfied due process.

Adoption of proposed order. The court rejected the argument that the district court’s adoption of substantial portions of plaintiffs’ proposed 88-page approval order demonstrated an absence of independent judgment. Even verbatim adoption of proposed findings does not automatically invalidate them. Here, the district court revised the proposed order before entering it, which supported the conclusion that it independently reviewed and approved the settlement.

Timeliness of intervention motion. Finally, the court affirmed the denial of Doyle’s motion to intervene. Intervention, whether as of right or permissive, must be timely. Doyle sought intervention after approximately five years of litigation, had knowledge of the case, offered no adequate explanation for the delay, and sought to intervene after settlement proceedings were well advanced. Reopening the matter at that stage would substantially prejudice the existing parties. The court also held that Doyle had not established a legally protectable interest sufficient to support intervention as of right; a generalized economic interest was insufficient. Accordingly, the Eighth Circuit affirmed the judgment in all respects.

The Case is No. 24-3444.

Judge: Smith, L.

Attorneys: Karl Barth (Hagens & Berman) for Rhonda Burnett. Deepti Bansal (Cooley LLP) for National Association of Realtors.

Companies: National Association of Realtors

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