– HomeServices of America has filed a motion requesting a mistrial in the Sitzer | Burnett commission trial, claiming that a video played in court by the plaintiffs’ attorney was an “ambush” that jeopardizes their chances for a fair trial.
– The National Association of Realtors and Keller Williams also want a mistrial declared, with NAR attorney Ethan Glass even requesting the case to be dismissed entirely.
– The video in question was a segment from a Tom Ferry podcast interview with Allan Dalton, the CEO of Real Living Real Estate, where Dalton compared agents who lower commissions to “hookers” offering their services to “sailors.”
– The defense argues that the video was not provided in discovery prior to the trial and should have been presented with more context or the opportunity to depose Dalton and Ferry.
– The defense also raises concerns about references to Inman articles, Department of Justice investigations, and inappropriate characterizations of the defense attorneys made by the plaintiffs’ attorney.
– If a mistrial or dismissal is not granted, the defense requests that the Dalton video and certain references be struck from the record.
No one can predict the future of real estate, but you can prepare. Find out what to prepare for and pick up the tools you’ll need at Virtual Inman Connect on Nov. 1-2, 2023. And don’t miss Inman Connect New York on Jan. 23-25, 2024, where AI, capital and more will be center stage. Bet big on the future and join us at Connect.
HomeServices of America on Wednesday formally filed a motion requesting a mistrial in the Sitzer | Burnett commission trial, arguing that a video played in court a day earlier by the plaintiffs’ attorney amounted to an “ambush” that severely jeopardizes the real estate franchisor’s chances for a fair trial.
Attorneys for the National Association of Realtors and Keller Williams also said Wednesday that they wanted Judge Stephen R. Bough to declare a mistrial, with NAR attorney Ethan Glass saying he wanted the case to be dismissed entirely.
“We are not asking for a new trial,” Glass said.
Attorneys for the HomeServices filed the motion following a decision by attorney Michael Ketchmark on Tuesday to play a segment from a video of a Tom Ferry podcast interview with Allan Dalton, the CEO of Real Living Real Estate and senior vice president of Berkshire Hathaway HomeServices. During the segment, which defendants allege was not provided in discovery prior to the trial, Dalton compared agents who agree to lower commissions to “hookers” offering their services to “sailors.”
“There’s no bleeping bleeping way I’m going to cut my bleeping bleeping commission,” Dalton says in the video, substituting the word “bleeping” for what he said would actually be profanity. “What do you think, I’m a bleeping bleeping hooker standing outside the Lincoln Tunnel at three o’clock in the morning giving bleeping bleepings to sailors?”
“If you think I’m going to cut my bleeping bleeping commission, you can take this home and shove it up your bleeping bleeping and I know that it will fit,” Dalton says in the video, which was recorded in September 2019, months after Sitzer | Burnett was filed.
The video wasn’t on the plaintiffs’ list of exhibits, attorneys for the various real estate industry defendants said. They then went on to list a series of occurrences in and out of court that they said should prompt Bough to declare a mistrial and start the proceedings over with a new jury. It is not uncommon for attorneys litigating major trials to make mistrial requests during the proceedings.
“Plaintiffs’ ambush with the highly-prejudicial video is just the most recent event in a series of violative actions,” attorney Robert MacGill, lead counsel for HomeServices, wrote in his motion. “Each and all of them result in the inescapable conclusion that this case has been mistried.”
MacGill said defense attorneys should have been given the opportunity to depose Dalton and Ferry for more context around Dalton’s statements, or to bring them to testify during the trial.
“It is too late to remedy any of these prejudicial factors in the context of this trial,” MacGill wrote. “A mistrial must be granted.”
Bough asked plaintiffs’ attorneys to respond in writing.
Among the other arguments in favor of a mistrial, MacGill said Ketchmark’s mention of an Inman article to the eight-member jury encouraged them to go research the case outside the courtroom. There, jurors would have found extensive and timely coverage of the trial.
Bough polled the jurors on Wednesday morning after they were seated to see whether any of them had read any news articles about the case. Each of them said, “No.”
The judge told them he was “instructing you to disregard any reference to Inman.”
Timothy Ray, an attorney representing Keller Williams, was most concerned with Inman’s article about NAR’s recent decision to allow listing brokers to offer buyer brokers nothing in compensation.
“It’s highly prejudicial to wave it around as if it’s a legitimate news story,” Ray said.
The defendants’ attorneys also said Ketchmark referenced investigations by the Department of Justice in front of the jury “despite being ordered not to.”
Additionally, the attorneys took issue with Ketchmark’s statement that defendants should “be careful when the rabbit gets the gun,” calling that statement one of multiple “extrajudicial threats and inappropriate characterizations” of the defense attorneys in the case.
If the requests to dismiss or start over aren’t granted, MacGill asked Bough to strike the Dalton video from the record. That means the judge instructs the jury to give the video no weight during their eventual deliberation.
He also asked Bough to strike from the record all references to Inman, all references to the Department of Justice, all references to where NAR’s attorneys live, all references to NAR executive pay, and all references to any action by regulatory authorities.
The motion for a mistrial included as an exhibit the plaintiff attorneys’ response to the Dalton video.
The response, written last night, was written by Scott McCreight, a colleague of Ketchmark who is also representing the plaintiffs. McCreight defended airing the Dalton video. He said the defendants didn’t object to the video when it was being played while HomeServices founder and chairman emeritus Ron Peltier was on the stand.
“Only after the video concluded did Defendants ask to approach” the bench, McCreight wrote. “When they did, they offered no objection based on the rules of evidence. Rather, counsel for HomeServices just claimed lack of notice. The Court overruled that objection.”
McCreight wrote that the court’s scheduling order didn’t require the plaintiffs to include exhibits that would be used for “impeachment and rebuttal purposes,” and that HomeServices never asked for the video during discovery.
“For all these reasons, HomeServices’ accusations of discovery violations are without merit,” McCreight wrote. “To the extent that HomeServices asks the Court to strike testimony (or for any other relief), that request should be denied.”
Property Chomp's Take:
The future of real estate is always uncertain. Market trends, economic conditions, and technological advancements can all have a significant impact on the industry. However, while we may not be able to predict the future, we can certainly prepare for it.
One way to stay ahead in the real estate game is by attending industry conferences and events that provide valuable insights and tools. Two such events that you shouldn't miss are Virtual Inman Connect on Nov. 1-2, 2023, and Inman Connect New York on Jan. 23-25, 2024.
Virtual Inman Connect is a premier real estate conference that brings together industry experts, thought leaders, and professionals from around the world. Through keynote speeches, panel discussions, and interactive sessions, attendees gain knowledge about the latest trends, technologies, and strategies shaping the future of real estate. This event offers a unique opportunity to network and learn from the best in the business.
Inman Connect New York is another must-attend event for real estate professionals. With a focus on AI, capital, and more, this conference explores how emerging technologies and financial trends are reshaping the industry. Attending this event will give you a competitive edge by equipping you with the knowledge and tools needed to navigate the ever-changing real estate landscape.
While these events provide valuable insights, it's also essential to stay informed about ongoing industry developments. One recent development that has caught the attention of many is the Sitzer | Burnett commission trial. In this trial, HomeServices of America, along with the National Association of Realtors and Keller Williams, has formally requested a mistrial. They argue that a video presented by the plaintiffs' attorney amounted to an "ambush" and jeopardized the fairness of the trial.
The video in question featured Allan Dalton, the CEO of Real Living Real Estate and senior vice president of Berkshire Hathaway HomeServices, comparing agents who agree to lower commissions to "hookers." The defendants argue that this video was not provided in discovery prior to the trial, and its introduction was highly prejudicial.
Attorneys for the various real estate industry defendants listed several occurrences in and out of court that they believe warrant a mistrial. They also expressed concerns about the plaintiffs' attorney referencing an Inman article during the trial, which they believe could have influenced the jury's perception of the case.
The outcome of this trial and its potential impact on the real estate industry remains uncertain. However, it highlights the importance of being prepared for unexpected challenges and having the right tools and strategies in place to navigate them.
In conclusion, while we cannot predict the future of real estate, we can certainly prepare for it. Attending conferences like Virtual Inman Connect and Inman Connect New York can provide valuable insights and tools to stay ahead in the industry. Additionally, staying informed about ongoing developments, such as the Sitzer | Burnett commission trial, allows us to adapt and respond effectively to changes in the real estate landscape. So, bet big on the future and join us at Connect to ensure you're ready for whatever comes next.