Why A Legal Technicality Could Unravel The Nar Commission Settlement

If you were hoping that 2026 would finally be the year real estate got to exhale, I have news that feels a little like when the pilot says the turbulence is “nothing to worry about,” while the flight attendants quietly buckle themselves in and trade nervous expressions. Deep in the towering stack of commission lawsuits sits one very dense, nerdy document that might matter more than all the headlines.

Law professor Tanya Monestier has filed a NAR settlement legal brief in the Eighth Circuit, and its core message is straightforward. She is telling the court that the giant NAR settlement, the one everyone has been rearranging their businesses around, might not actually be legally valid.

Before I go any further, let me be clear. I am not a lawyer. I do not bill by the hour, I do not speak Latin, and if I ever said “res judicata” out loud, I am pretty sure I would summon some kind of irritated courthouse spirit or some rejected Harry Potter spell about winning an argument with your significant other. 

When I start talking about Article III standing, it feels like asking your plumber to explain cryptocurrency. He might have opinions, but that does not mean he should set up your digital wallet. What follows is not legal advice, it is industry translation from someone who cares deeply about how all this lands for brokers, teams and agents who just want to know what rules we are playing by and did a lot of reading and even more thinking.

Monestier is not swinging wildly

One thing worth adding. I have actually sat down with Monestier. She joined myself and my cohost on Real Estate Insiders Unfiltered not long ago, and I enjoyed the conversation more than any normal person should enjoy talking about antitrust litigation. She is sharp, thoughtful, incredibly well-prepared, and she has that rare academic talent of explaining complicated things without making you feel like you walked into the wrong classroom. Whatever you think of her brief, I can tell you she is not swinging wildly. She is making a clear, reasoned argument that deserves attention, even if it gives the industry heartburn.

How did we get here?

Here is the short version of how we got here, without making you pull out a casebook. A Missouri jury found NAR and several large brokerages liable for conspiring to keep commissions high, with damages north of a billion dollars before trebling. That verdict opened the floodgates.

Within months, a patchwork of nationwide settlements emerged across cases like Sitzer, Burnett, Gibson and others. These deals involved more than a billion dollars in payouts to home sellers and new rules around buyer agreements and offers of compensation. A federal judge approved the settlements and declared them “fair, reasonable, and adequate” to the class. The industry moved into its implementation phase, everyone started rewriting their playbooks, and business models were rearranged across the country.

Not so fast, says Monestier

But Monestier has been waving a big, bright flag from day one. In her words, “Lawsuits and settlements can only resolve actual cases or controversies. They cannot purport to change industry rules and then claim those changes benefit past home sellers, and that is exactly what happened here.” That is not just a legal technicality. That is her saying that the court might not have had the authority to approve part of the settlement in the first place.

Her argument comes in two major parts. The first is constitutional standing. She argues the plaintiffs had standing to sue for past damages, but nothing in the record shows they were at imminent risk of being harmed again. As she puts it, they “did not allege or demonstrate they were at imminent risk of being harmed again,” which means they could not legitimately negotiate forward-looking industry practice changes for 40 million other people who may not sell another home for years, or ever. Article III is not a suggestion. Courts either have jurisdiction or they do not, and she is arguing this court did not.

The second part is fairness under Rule 23. Settlements in class actions must be fair, reasonable and adequate. She highlights that the average payout to home sellers is tiny, often estimated around $16. As she bluntly put it, that is “not even enough money to buy a pizza,” while attorneys request hundreds of millions in fees. She is not subtle about the comparison. Whether you agree with her or not, that ratio gets attention from judges who must certify that a settlement benefits the class more than the lawyers. And tiny payouts are not unusual. In the famous Google privacy case a few years back, the math worked out to around four cents per person, which is the legal system’s way of saying, “Thank you for your patience, please enjoy this gum you didn’t ask for.”

She also questions whether the practice changes offer any meaningful relief. In one public comment, she described the settlement’s implementation as “a disaster,” arguing the changes “do not eliminate steering and have led to widespread confusion and exploitation of consumers.” In other words, the reforms sound good on paper, but in the real world they are uneven, easily worked around, and difficult to enforce.

All of this has reached the Eighth Circuit, which now has to decide whether to uphold the settlement, narrow it, or send it back. Nobody knows which way that goes. But we can map out a few paths.

Possibility one, the settlement stands

The court could affirm everything. The practice changes stay. The payouts stay. Brokerages keep implementing the same rules they have already spent months adapting to. It might be imperfect legally, but the industry at least gets closure.

Possibility two, the court agrees with Monestier and vacates the settlement

This is the “uh-oh” scenario. If the court says the district judge lacked the authority to approve forward-looking practice changes, the settlement could be unwound or restructured into a money-only deal. That would reopen years of litigation, revive dormant cases and throw the industry back into a legal fog it thought it had escaped. This is possible but lordy what a mess it would create.

Possibility three, the settlement survives but the bar moves

Even a partial win for Monestier could force future settlements toward higher payouts, stronger enforcement mechanisms and a more rigorous reading of Rule 23. That would reshape the cost structure for every major brokerage in the country and push consolidation into overdrive.

Possibility four, scrutiny intensifies regardless

Even if the settlement stands, the Department of Justice has made it clear that court-approved deals do not shield the industry from antitrust scrutiny. The commission conversation is not ending. It is evolving. The sequel is already in production.

How to prepare

Here is the bottom line: This reply brief is not a law school exercise. It is a live grenade sitting in the middle of the “we finally settled this” narrative. If the Eighth Circuit pulls the pin, the industry will have to rethink not only what it pays out in damages, but who has the authority to negotiate rules that reshape how real estate is practiced nationwide.

For now, all we can do is wait for the ruling, keep our eyes open and recognize that the legal system still has a few plot twists left in this saga. If there is one thing I learned from talking with Monestier, it is that these arguments are not coming from the sidelines. They are coming from someone who understands the law, understands the stakes and believes the courts still matter in shaping what comes next.

The truth is, we as operators do not control any of this. We are not steering the courts, we are not drafting settlement language and we are not deciding whether Article III is a suggestion or a commandment.

Our job is to track the storm without acting like the Weather Channel reporter who stands outside in 70 mile-an-hour winds for dramatic effect. Watch the forecast, yes, but keep working the plan. You do not cancel your whole week because someone said “chance of showers.” But maybe grab that umbrella before you head out the door.