What Happens If All Three Defenses Fail? Redfin, United, and eXp Face a Damages Reckoning

Part of the Batton 2 Defenses Series

By Frances Flynn Thorsen

Three of the five remaining defendants in the Batton 2 buyers' commission antitrust lawsuit — Redfin, United Real Estate, and eXp Realty — have each staked out a distinctive legal defense that, if successful, could eliminate or dramatically reduce their liability. Redfin says it left the conspiracy before the damages period. United says it was never in the conspiracy because it was never a NAR member. eXp says its independent contractor model means it never agreed to anything.

But what happens if Judge Andrea Wood rejects all three defenses?

The answer involves some of the largest potential damages figures in the history of residential real estate litigation — and a legal mechanism that could triple them.

The Baseline: What Plaintiffs Are Claiming

The Batton 2 plaintiffs — buyers who paid commissions in transactions involving the five remaining defendants — are claiming that the NAR's Buyer Broker Commission Rule (BBCR) artificially inflated buyer-side commissions by requiring sellers to offer compensation to buyers' agents as a condition of MLS access.

The damages theory is straightforward: but for the rule, buyer-agent commissions would have been lower (or zero), and buyers would have paid less — either directly or indirectly through higher purchase prices that incorporated the inflated commission costs.

The plaintiffs are seeking treble damages under the Sherman Antitrust Act, meaning any actual damages found by the jury are automatically tripled by the court.

Redfin's Exposure: The Withdrawal Defense Fails

Redfin's withdrawal defense rests on a specific legal argument: that it publicly broke with NAR's commission practices before the damages period began, and therefore cannot be held liable for harm that occurred after it left.

If the court rejects this defense — finding either that Redfin's withdrawal was not legally sufficient, or that Redfin continued to benefit from the conspiracy even after its public statements — Redfin faces exposure tied to its transaction volume during the damages period.

Redfin processed approximately $100 billion in transaction volume between 2015 and 2024, the approximate damages window. With buyer-agent commissions averaging 2.5–3% of transaction value, and plaintiffs claiming those commissions were inflated by roughly 1–1.5 percentage points, the raw damages estimate for Redfin alone could reach $1–1.5 billion before trebling.

After trebling under the Sherman Act, that figure could reach $3–4.5 billion — a potentially existential number for a company with a market capitalization that has ranged from $500 million to $2 billion in recent years.

United Real Estate's Exposure: The Non-Membership Defense Fails

United's defense is arguably the most novel: it claims it was never a NAR member and therefore was never bound by the BBCR. If the court finds that United participated in the conspiracy through its MLS access — even without formal NAR membership — the damages picture changes significantly.

United Real Estate is a privately held company, which makes precise transaction volume estimates difficult. However, the company has publicly claimed to be among the top 10 largest real estate brokerages in the United States by transaction count, with approximately $50–75 billion in annual transaction volume in recent years.

Applying the same damages methodology, United's exposure — if the non-membership defense fails — could reach $500 million to $1 billion before trebling, or $1.5–3 billion after trebling.

The non-membership defense, if it fails, would also set a significant precedent: it would establish that MLS participation alone is sufficient to create antitrust liability, regardless of formal NAR membership. That ruling would have implications far beyond United's own case.

eXp Realty's Exposure: The Independent Contractor Defense Fails

eXp's independent contractor defense is the most structurally complex. The company argues that because its agents are independent contractors — not employees — eXp itself never "agreed" to the BBCR, and any commission practices were the individual decisions of its agents.

If the court rejects this defense, eXp faces exposure tied to one of the largest agent networks in the country. eXp has grown to approximately 90,000 agents in the United States, with annual transaction volume exceeding $100 billion in recent years.

Under the same damages methodology, eXp's exposure could reach $1–1.5 billion before trebling, or $3–4.5 billion after trebling — comparable to Redfin's exposure despite eXp's very different business model.

The independent contractor defense failure would also have industry-wide implications: it would establish that cloud brokerages cannot use their agent structure to insulate themselves from antitrust liability for practices that their agents uniformly followed.

The Trebling Mechanism: Why Antitrust Damages Are Different

Unlike most civil litigation, antitrust cases under the Sherman Act carry mandatory treble damages. This is not discretionary — if a jury finds liability and awards actual damages, the court must triple the award.

The trebling mechanism was designed by Congress to deter anticompetitive conduct and incentivize private enforcement. In practice, it means that even a relatively modest jury award can become a company-threatening judgment.

For context: the Sitzer/Burnett jury awarded $1.78 billion in actual damages against NAR and four brokerages. After trebling, that figure would have been $5.34 billion — before the defendants negotiated settlements totaling approximately $950 million.

The Batton 2 case involves different defendants and a different plaintiff class (buyers, not sellers), but the trebling mechanism is the same.

The Settlement Calculus: Why Defendants May Settle Before Trial

Given the potential damages exposure, the rational calculation for each defendant is whether the cost of settlement is lower than the expected value of going to trial.

For Redfin, United, and eXp, that calculation is complicated by their individual defenses. If any of the three defenses succeeds, the defendant's liability could be zero — making settlement look expensive by comparison. But if the defenses fail, the exposure is potentially existential.

This is why the Weichert mediation (due May 27) is being watched so closely. Weichert is the only Batton 2 defendant that has not asserted a structural defense — its strategy appears to be negotiating a settlement rather than litigating to judgment. If Weichert settles, it will establish a benchmark that Redfin, United, and eXp will use to evaluate their own settlement options.

What Comes Next

The next major procedural milestone in Batton 2 is the June 2 joint status report, in which all five defendants must update the court on the status of their individual settlement negotiations and any pending motions.

Judge Wood has not yet set a trial date, but the case is expected to move toward summary judgment briefing in late 2026 — the stage at which the court will rule on whether any of the three structural defenses survive as a matter of law.

If all three defenses survive summary judgment, the case proceeds to trial with the defenses intact. If any defense fails at summary judgment, the defendant faces a jury on the merits — and the damages exposure described above becomes the operative risk.

Comparing the Three Batton 2 Defenses

For quick reference, here is how all three defendants' strategies compare side by side. Detailed analysis of each defense appears in the series posts linked below.

Continue the Series

This post is part of the Batton 2 Defenses Series — a deep dive into how each defendant is fighting the buyers' commission antitrust lawsuit.

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📚 Series Overview: The Batton 2 Defenses: A Reader's Guide — Start here if you're new to the series.

DISCLOSURE: This content is for informational and journalistic purposes regarding real estate litigation and transparency. The author is an active licensee with eXp Realty LLC; however, this report is independent of that affiliation. This article does not constitute legal advice.