The Batton 2 Defenses: A Reader's Guide

By Frances Flynn Thorsen

Three of the five remaining defendants in the Batton 2 buyers' commission antitrust lawsuit filed answers to the second amended complaint on April 28, 2026. Each answer contained a distinct affirmative defense — and together, they reveal the full range of strategies available to brokerages fighting antitrust liability in the post-NAR-settlement era.

This guide introduces the three-part series and explains why these defenses matter.

What Is Batton 2?

Batton 2 (Batton v. Compass, Inc., et al.) is a federal antitrust lawsuit pending in the Northern District of Illinois before Judge Matthew Durkin. It was filed by buyers — not sellers — who allege that major real estate brokerages conspired to artificially inflate buyer-broker commissions through the NAR's Cooperative Compensation Rule.

The defendants include Compass, eXp Realty, Redfin, United Real Estate, and Weichert Realtors. Unlike the Sitzer/Burnett case (which went to trial and produced a $1.8 billion verdict) and the Tuccori settlement (which resolved NAR's liability), Batton 2 is still in active litigation.

The Three Defenses

Each of the three defendants who filed on April 28 advanced a different theory:

Redfin: The Withdrawal Defense — Redfin resigned from NAR in October 2023, citing the Cooperative Compensation Rule as a primary reason. Its defense argues that this resignation constitutes a legal "withdrawal" from the alleged conspiracy, limiting or eliminating its liability for damages after that date. This is the most legally novel defense in the series, drawing on the Smith v. United States withdrawal doctrine from criminal antitrust law.

United Real Estate: The Non-Membership Defense — United made a striking admission in its filing: it is not, and never has been, a member of NAR. Its defense argues that without a membership agreement, there was no mechanism by which United could have agreed to follow the Cooperative Compensation Rule. This is the most straightforward defense factually, but it faces a significant challenge: plaintiffs argue that MLS participation — not NAR membership — is the relevant agreement.

eXp Realty: The No-Conspiracy / Independent Contractor Defense — eXp, the largest defendant by agent count (89,000+ agents), advances two arguments: first, that no conspiracy existed; and second, that its cloud-based, independent-contractor model means it had no mechanism to enforce commission practices across its agent network. This is the most ambitious defense — and the one facing the steepest uphill climb, given eXp's current NAR membership and massive scale.

Why These Defenses Matter

These three defenses are not just legal arguments in a single case. They are the opening moves in what will likely become a broader playbook for real estate brokerages facing antitrust liability in the post-NAR-settlement landscape.

If Redfin's withdrawal defense succeeds, every brokerage that has since resigned from NAR will have a template for limiting its damages exposure. If United's non-membership defense succeeds, independent brokerages that operate outside the NAR ecosystem will have a clear path to dismissal. If eXp's independent contractor defense succeeds, cloud-based brokerages with large agent networks will have a structural argument that could reshape how antitrust liability is allocated in the industry.

None of these defenses is certain to succeed. But each one is worth understanding — because the outcome of Batton 2 will set the precedent for the next wave of commission litigation.

Read the Full Series

• Part 1: Redfin's "We Already Left" Defense — The withdrawal doctrine, Redfin's timeline, and why timing is everything

• Part 2: United Real Estate's NAR Non-Membership Defense — The admission that could be a defense, and why MLS participation complicates it

• Part 3: eXp Realty Is Fighting Batton 2 On Three Fronts — And The Third One Isn't In The Courtroom — The cloud brokerage's uphill battle and the scale problem

• Epilogue: What Happens If All Three Defenses Fail? — Treble damages, the settlement calculus, and what June 2 will reveal

Watch Dates

• May 27, 2026: Weichert mediation status report due — a settlement here would be the first direct Batton 2 resolution

• June 2, 2026: Joint status report due — will set the discovery schedule and reveal how plaintiffs plan to respond to all three defenses

Image Credit: Nano Banana

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.