Amicus Brief: Burnett v. Monestier

This case involves regulation through litigation: using lawsuits to impose sweeping structural changes on the economy without legislative approval or public accountability. It began as a class action lawsuit, which alleged that the National Association of Realtors’ longstanding rules about how to list its affiliated agents’ properties on a multiple listing service database violated federal antitrust law.

After a 2023 trial in federal district court in Kansas City, a jury returned a $1.8 billion verdict for the plaintiffs. The parties then agreed to settle the case by chopping the award to $418 million but also restructuring industry practices nationwide by barring the display of buyer-broker commission offers on multiple-listing services (know as “MLS”) and requiring homebuyers to sign formal representation agreements before viewing properties. The trial judge approved this settlement, but a member of the settlement class—thus a party to the lawsuit—objected. The case is now before the U.S. Circuit Court of Appeals for the Eighth Circuit.

The Manhattan Institute’s brief argues that courts lack the institutional competence to restructure complex markets and that class action procedure should not be used as a vehicle for enacting major policy changes that evade democratic deliberation. Building on MI’s longstanding concern with judicial and administrative overreach, the brief urges the Eighth Circuit to reject settlements that bypass the constitutional separation of powers and impose broad commercial reforms through judicial decree.

James R. Copland is a senior fellow at the Manhattan Institute and director of Legal Policy.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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