The virtual brokerage argued on Tuesday that its settlement was too small, and asked the court to reject efforts to force it back to the negotiating table.
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EXp Realty on Tuesday dismissed criticism of its commission’s decision, saying in a court filing that the deal is not too small and the deal should be allowed to proceed as the company intended.
The dispute stems from eXp’s agreement, announced in early October, to pay $34 million to settle its role in various commission cases. The company reached a negotiated settlement in the Georgia case known as Hooper. As a result, eXp asked the judge to “stay,” or pause, its portion of the case in Missouri’s most famous case known as Gibson.
However, last week opponents of Gibson House said the company’s deal was too sweet. They want to force eXp to negotiate with them, and have asked a judge to deny the brokerage’s request to stop Gibson’s lawsuit. In court filings, they described the eXp deal as “an unfair or reasonable sweetheart deal” and said it was a “premature and cheap deal.”
The next chapter in the saga begins on Tuesday, when eXp files new court papers defending its position. Among other things, eXp argues in the filing that there will be no negative consequences for staying Gibson’s case while the settlement is reviewed by the court overseeing Hooper’s case.
The EXp also states that the Gibson estate plaintiffs may bring their own appeals against the Hooper court settlement. And, pending the filing, the plaintiffs could challenge the Gibson court again if they succeed in bringing the case back to Missouri.
The brokerage further “disputes” in filing “the opinion that eXp should have paid more on average than other settlement defendants given the savings.” In other words, eXp doesn’t believe it has a sweetheart deal.
However, eXp also says that discussions about the size of the settlement are inconsistent with the company’s request for a stay in the Gibson case.
“Plaintiffs can raise those disputes in the eXp settlement with Judge Cohen or opt out of the Hooper settlement if they don’t like it,” the company said in the filing, referring to Mark Cohen, US District Court Judge for the Northern District. Georgia directs Hooper.
Finally, eXp argues that the case law is not on the side of the domestic plaintiffs. The company specifically states that there is no law that compels a defendant to settle with the business that first sued in a class action case. Put another way, eXp says it didn’t have to start with the Gibson plaintiffs rather than interview people who started a different, more recent lawsuit — in this case, the Hooper plaintiffs.
The dispute is in response to the Gibson plaintiff’s claim that eXp used what is known as a “reverse auction,” a practice in which the defendant chooses attorneys from among competing classes and negotiates the lowest possible settlement. That practice, Gibson plaintiffs argued last week, allowed eXp to reach a lower settlement than it would have if it had been required to negotiate with Gibson’s lawyers.
EXp then makes the argument that the idea of approaching different plaintiffs to get the best deal is unconstitutional.
It remains to be seen how the court will respond to the competing claims. But on the other hand, eXp concluded its new filing by arguing that the court should stay the Missouri proceeding and let the case move forward in Georgia.
“In conclusion,” the filing states, “plaintiffs have not identified discrimination against them or their personal injury caused by eXp’s suspension, and no cases support their proposition that they should not be granted accommodation.”
Read the eXp court filing here (if the documents don’t appear, refresh the page):
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