Plaintiffs Add Berkshire Hathaway to $200B Commissions Suit

The plaintiffs in one of the biggest antitrust lawsuits filed against residential real estate players have added an even bigger name to the cast of defendants.

An amended complaint in the Gibson lawsuit to include Berkshire Hathaway Energy, the Wall Street Journal reported. Billionaire investor Warren Buffett’s Berkshire Hathaway owns 92 percent of the unit, which in turn controls brokerage HomeServices of America, and is joining Compass, Douglas Elliman and Redfin among the defendants in the action seeking over $200 billion in damages.

“What we’re trying to show is that this isn’t an isolated event in some corporate office,” said plaintiff lawyer Mitchael Ketchmark, who also represented the plaintiffs in Sitzer/Burnett, the first such case to go to trial and deliver a guilty verdict against the National Association of Realtors and HSA. “This goes to the top of Berkshire Hathaway.”

HomeServices was one of the defendants in Sitzer/Burnett and one of the only brokerages in the case not to settle. The brokerage could lose up to $5.4 billion as a result of the verdict, Berkshire disclosed in its most recent annual report. The brokerage did not comment on the amended complaint.

The move adds a financial heavy-hitter to the mix: Berkshire had more than $160 billion on hand at the end of 2023, outshining the $1 billion HSA’s fellow Sitzer defendant, NAR, had in total assets to close out 2022.

The cash store also far exceeds assets projected for Anywhere and Re/Max, which proposed settlements of $84 million and $55 million, respectively, that also apply to Moehrl, a lawsuit out of Illinois that could fetch up to $40 billion in damages

In the latest case, the plaintiffs allege Buffett used the Berkshire Hathaway name to promote its real estate brokerage, justifying the inclusion of the company in the amended complaint.

Ketchmark filed the class-action lawsuit mere minutes after the Sitzer/Burnett ruling landed in late October, naming the National Association of Realtors, Compass, Douglas Elliman, eXp, Redfin, Weichert Realtors, United Real Estate and Howard Hanna Real Estate Services as defendants.

The suit is part of a wave of complaints hinged on NAR commission guidelines, which brokerages follow through membership in the trade group and, plaintiffs allege, were involved in conspiring to keep commissions high. By following NAR’s rule requiring sellers to “make a blanket, unilateral and effectively non-negotiable offer,” the complaint alleged the firms violated antitrust law.

— Holden Walter-Warner