NAR settlement appeals continue as law professor Tanya Monestier weighs in

After filing several different motions, including a motion to intervene, University of Buffalo law professor Tanya Monestier has filed an appeal of several rulings made by Judge Stephen R. Bough — including his final approval of the National Association of Realtors’ (NAR)  commission lawsuit settlement agreement.

In a notice filed on Thursday, Monestier informed the Eighth Circuit Court of Appeals that she was appealing Bough’s ruling on her motion for reconsideration, her motion to intervene and the approval of the settlement, as well as his denial of the motions of several other objectors.

Monestier’s motion for reconsideration was filed in mid-November in response to Bough’s order that all objectors must attend the final approval hearing in person for their objection to be considered.

In her filing, Monestier argued that the “Court lacks the authority to compel in-person attendance at a fairness hearing after assuring class members that their voices would be heard if they played by certain rules outlined in the class notice.”

After Bough approved the NAR settlement on Nov. 26, Monestier filed a motion to intervene. She argued that this was necessary because in denying her motion for reconsideration and striking her objection, the court created legal ambiguity about her appellate standing, which she claimed could delay the resolution of her planned appeal.

“She simply wishes to have formal party status for purposes of appeal to avoid collateral litigation on appeal and reduce appellate delay,” Monestier wrote of herself in her filing.

Bough quickly denied Monestier’s motion to intervene, writing in the court docket runner that “intervention is not required, rather an objector need only timely file a proper objection with the district court to preserve their right to appeal.” 

Monestier has been a vocal critic of the NAR settlement. In October, she filed a 132-page objection in which she criticized the lack of “outside, neutral analysis” of the settlement.

“I wish there were more voices closely scrutinizing whether this settlement provides the value it claims to aggrieved class members and whether the attorneys have provided a third of a billion dollars in value to the class,” she wrote. “As far as I know, those voices are nowhere to be heard.”

She went on to claim that the settlement “is the worst of all possible worlds,” and that the implementation of the settlement has been a “disaster.”

“The goal of the settlement was laudable,” Monestier wrote. “It was based on the premise that buyer brokers were using commission rates posted on the [multiple listing service] to steer buyers to properties that provided higher levels of compensation.  … The settlement makes sense — but only on paper. It is an example of something concocted by lawyers without a full appreciation of how this would play out in the real world.”

Monestier joins the Burton suit plaintiffs as well as Robert Friedman, Monty March and the Spring Way Center in filing an appeal of the NAR settlement.