The virtual brokerage argued Tuesday that its settlement wasn’t too small, and asked a court to reject attempts to force it back to the negotiating table.
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EXp Realty on Tuesday pushed back against criticism of its commission lawsuit settlement, saying in a court filing that the agreement wasn’t too small and that the deal should be allowed to proceed as the company intended.
The conflict stems from eXp’s agreement, announced in early October, to pay $34 million to settle its role in various commission lawsuits. The company arrived at the deal via negotiations in a Georgia case known as Hooper. As a result, eXp asked a judge to “stay,” or pause, its part in the litigation of a better-known Missouri case dubbed Gibson.
However, last week the Gibson homeseller-plaintiffs claimed the company’s deal was too sweet. They want to force eXp to negotiate with them, and specifically asked the judge to deny the brokerage’s request to stay the Gibson litigation. In a court filing, they described eXp’s deal as an “improper sweetheart deal that is not fair or reasonable” and said it was “a premature and cheap settlement.”
The next chapter in the saga then began Tuesday, when eXp filed new court documents defending its position. In a statement to Inman regarding the filing, eXp said that the “stay motion is part of eXp’s plan to resolve the commission litigation on a nationwide basis. We remain confident the Georgia judge overseeing the Hooper case will find the settlement to be fair, reasonable and adequate.”
In the filing itself, eXp argues among other things that there would be no ill effects from staying the Gibson case while the settlement is reviewed by the court overseeing the Hooper suit.
EXp also argues that the Gibson homeseller-plaintiffs can bring up their complaints about the settlement in the Hooper court. And, the filing continues, the plaintiffs may also argue before the Gibson court if they’re successful in bringing the case back to Missouri.
The brokerage additionally “disputes” in the filing the “idea that eXp should have paid more on a pro rata basis than other settling defendants given its cash reserves.” In other words, eXp doesn’t believe it got a sweetheart deal.
However, eXp also argues that discussions about the size of the deal are irrelevant to the company’s request to stay the Gibson case.
“Plaintiffs can raise those objections to eXp’s settlement with Judge Cohen or opt-out of the Hooper settlement if they do not like it,” the company said in the filing, referring to Mark Cohen, the U.S. District Court Judge for the Northern District of Georgia overseeing Hooper.
Finally, eXp argues that case law is not on the side of the homeseller-plaintiffs. The company specifically claims that there’s no rule forcing a defendant to settle with the first entity to sue in a class-action situation. Put another way, eXp is claiming that it wasn’t required to go first to the Gibson plaintiffs rather than negotiating with the people who initiated a different, later case — in this instance, the Hooper plaintiffs.
The argument is a response to the Gibson plaintiff’s claim that eXp used what’s known as a “reverse auction,” a practice whereby a defendant selects attorneys among competing classes and negotiates the lowest possible settlement amount. That practice, the Gibson plaintiffs argued last week, allowed eXp to reach a settlement agreement that was lower than it otherwise would have been if they were required to negotiate with Gibson attorneys.
EXp, then, is making the argument that the idea of approaching different plaintiffs to get the best deal is not against the rules.
It remains to be seen how the court might respond to the competing claims. But for its part, eXp concluded its new filing by arguing that the court should stay the Missouri proceedings and let the case move forward in Georgia.
“In conclusion,” the filing states, “plaintiffs have pointed to no prejudice to them or their case that would be caused by a stay as to eXp, and cited no cases that support their proposition that a stay should not be granted.”
Read eXp’s court filing here (if the documents don’t appear, refresh the page):
Update: This story was updated after publication with a statement from eXp.
Email Jim Dalrymple II
