eXp Realty Is Fighting Batton 2 On Three Fronts — And The Third One Isn't In The Courtroom

By Frances Flynn Thorsen

When eXp Realty filed its answer to the Batton 2 second amended complaint on April 28, 2026, it came out swinging. Two distinct legal defenses, both squarely aimed at the heart of the plaintiffs' theory: a blanket denial that any conspiracy ever existed, and a structural argument that eXp's cloud-based, independent-contractor model insulates it from vicarious liability for whatever its 89,000-plus agents may have done.

But the more interesting story is the one happening outside the courtroom. Since the NAR settlement took effect, eXp has rebuilt its listing-agreement architecture to eliminate broker-to-broker commission sharing entirely. Buyer-agent compensation, in eXp's current world, no longer flows from listing broker to buyer broker at all. It flows from the seller, directly, through a concession negotiated in the purchase contract.

That policy is not a defense to Batton 2. The damages period is closed. But it is, in effect, a forward-looking exhibit — a corporate version of the Fifth Amendment's "we have already restructured the conduct you're complaining about." Whether that exhibit helps eXp at trial, or hurts it, is one of the more interesting strategic questions in the case.

What eXp Is Arguing

eXp's April 28 filing advances two core positions:

The "no conspiracy" defense. eXp flatly denies that it participated in, agreed to, or benefited from any conspiracy to fix buyer-broker commissions. Unlike Redfin — which has acknowledged prior NAR membership and is leaning on the Smith v. United States withdrawal doctrine — and unlike United Real Estate, which states it was never an NAR member at all, eXp's position is essentially that the alleged conspiracy did not exist as a matter of law, and that even if it did, eXp was not part of it.

The independent contractor defense. eXp argues that its agents are independent contractors, not employees, and that the brokerage cannot be held vicariously liable for commission practices its agents independently chose to follow. Because eXp operates without physical offices — its agents work entirely through the company's cloud-based virtual environment — eXp contends it had no traditional management structure through which to enforce or coordinate any commission-sharing scheme.

Both defenses are plausible on paper. Both face headwinds.

Why the "No Conspiracy" Defense Is Harder Than It Looks

The "no conspiracy" defense is the broadest and most aggressive position eXp could take. It asks the court to find that the entire Batton 2 theory of liability is wrong — not just as applied to eXp, but as a matter of law.

That is a tall order. Plaintiffs already survived a motion to dismiss in Batton 2, which means Judge Durkin found the conspiracy allegations plausible enough to proceed. eXp is now seeking a different outcome at summary judgment, where the question is whether there is a genuine dispute of material fact.

The problem for eXp is the paper trail. eXp is a current NAR member. Its agents must follow NAR's Code of Ethics and MLS rules as a condition of MLS access. Those rules — at least during the damages period — included the Cooperative Compensation Rule requiring sellers' agents to offer compensation to buyers' agents. Plaintiffs are expected to argue that eXp's participation in NAR-affiliated MLSs is direct evidence of agreement to follow that rule.

eXp will likely respond that MLS participation does not equate to a price-fixing agreement — that the commission-sharing requirement was a neutral rule about how listings were structured, not an antitrust violation. That argument has been raised before in this litigation. It did not prevail in Sitzer/Burnett.

Why the Independent Contractor Defense Is More Interesting

The independent contractor defense is the more novel and legally interesting of the two. It is also the one that could distinguish eXp from every other defendant in Batton 2.

The theory: eXp does not have branch offices, regional managers, or a traditional corporate hierarchy capable of coordinating commission practices across an agent network. Its agents operate independently through eXp World, the company's virtual platform. eXp will argue that without a traditional management structure, it lacked the mechanism to enforce or participate in any commission-fixing arrangement.

That argument has surface appeal. The plaintiffs' conspiracy theory depends on brokerages actively enforcing the Cooperative Compensation Rule — steering buyers toward higher-commission listings, training agents to maintain rates, and disciplining agents who deviated. eXp will argue it did none of those things.

The vulnerability is structural. eXp still controls MLS access. Even if eXp's agents are independent contractors, they reach NAR-affiliated MLSs through eXp's brokerage license. The brokerage agreement with each MLS incorporates the MLS rules — including, during the damages period, the Cooperative Compensation Rule — by reference. eXp, as the licensed broker of record, agreed to those rules on behalf of its agents.

Plaintiffs are expected to argue that the independent contractor structure is therefore beside the point: the agreement to follow the Cooperative Compensation Rule was made at the brokerage level, not the agent level. Whether the court accepts that framing is one of the central questions in the case.

The Third Front: eXp's Post Settlement Rebuild

While eXp is denying the conspiracy in court, it has spent the last two years quietly engineering one of the most aggressive compliance pivots in the brokerage industry.

In July 2024, in the wake of the NAR settlement, eXp overhauled its national listing agreement to eliminate broker-to-broker commission sharing. Under the revised policy, the listing brokerage does not directly pay a cooperating buyer's broker. The listing agreement now states that fact in bold. eXp's public stance, articulated by leadership at the time, is that the Department of Justice prefers the complete decoupling of commissions — and that eXp's policy is meant to align with that preference.

The policy does not prohibit buyer-agent compensation. It restructures the channel through which compensation flows. Under the eXp framework, buyer agents can still be paid, but the payment must come directly from the seller, authorized in the purchase contract, rather than passing through the listing broker as a commission split. eXp's listing contracts include a dedicated section for seller concessions designed for exactly this purpose.

The Pennsylvania application is illustrative. Under traditional Pennsylvania practice, when a buyer and seller agree the listing broker will pay the cooperating broker from the sale proceeds, agents have used the Pennsylvania Association of REALTORS® Form CBC (Cooperating Broker Compensation Agreement). That form contemplates a broker-to-broker payment.

eXp does not use it. Per the firm's internal policy, eXp agents in Pennsylvania are instructed to have the buyer's fee paid directly by the seller through a concession negotiated in the PAR Agreement of Sale, rather than through a Form CBC broker-to-broker split. The mechanism reaches the same economic result — the buyer's agent gets paid — but it changes who is doing the paying, and through which document the obligation runs.

The strategic logic is straightforward. If the antitrust theory in Batton 2 hinges on broker-to-broker compensation as the engine of an industry-wide price-fixing scheme, the cleanest defense going forward is to remove the engine.

Does The Rebuild Help Or Hurt eXp At Trial?

This is the question, and reasonable lawyers can argue it both ways.

The plaintiffs' framing. Plaintiffs will likely argue that eXp's rapid restructuring is a tacit admission that the prior compensation regime was indefensible. The faster and more comprehensively a defendant abandons a challenged practice, plaintiffs typically argue, the more it tells the court about how the defendant viewed that practice all along.

eXp's framing. eXp will counter that the restructuring is forward-looking compliance with a settlement and an evolving regulatory environment, not an admission of past wrongdoing. Federal Rule of Evidence 407 generally bars the use of subsequent remedial measures to prove prior negligence or culpable conduct, and antitrust defendants regularly invoke analogous principles. eXp will argue that its post-settlement policy is, if anything, evidence of good faith.

The truth is likely in between. The compensation rebuild does not retroactively cure the damages-period exposure. But it does substantially reduce eXp's future exposure, and it gives the company a story to tell about who it is now — a story that may matter more in settlement negotiations than at trial.

Comparing the Three Batton 2 Defenses

Of the three defendants, eXp faces the most difficult path to summary judgment. It is a current NAR member with the largest agent count of any Batton 2 defendant. Its cloud-based model is innovative, but it does not change the fact that eXp signed MLS subscriber agreements incorporating the Cooperative Compensation Rule during the damages period.

The Scale Problem

There is another dimension to eXp's exposure that the independent contractor defense does not address: scale.

eXp grew from roughly 2,000 agents in 2016 to over 89,000 agents by early 2026 — a roughly 44-fold increase across the damages period. That growth was fueled in part by a revenue-sharing model that incentivized agents to recruit other agents, creating a network effect that propagated eXp's commission practices across an enormous and rapidly expanding agent population.

Plaintiffs are expected to argue that eXp's growth during the damages period made it a major beneficiary of what they characterize as artificially inflated commission structures — and that the larger the benefit, the greater the exposure.

What Discovery Will Reveal

eXp's defenses, like Redfin's and United's, will not be resolved before discovery. The June 2 joint status report will signal whether the parties are moving toward a discovery schedule or another round of motions.

Discovery will be particularly consequential for eXp because plaintiffs will want to examine four categories of documents:

1. eXp's MLS subscriber agreements and any amendments during the damages period.

2. Internal communications about commission rates and the Cooperative Compensation Rule.

3. Agent training materials and compliance policies — particularly any documents instructing agents on how to handle commission discussions with sellers.

4. The revenue-sharing program documentation and how it interacted with commission practices.

If those documents show that eXp actively trained agents to maintain commission rates or discouraged deviation from the Cooperative Compensation Rule during the damages period, the independent contractor defense will face significant pressure. If, on the other hand, the documents reflect a hands-off culture consistent with eXp's narrative, the defense gains real traction.

The May 27 Weichert mediation update is also worth watching. A Weichert settlement would increase pressure on every remaining defendant — including eXp — to evaluate its own settlement options

The Bottom Line

eXp Realty's defenses are the most ambitious of the three Batton 2 defendants analyzed in this series — and, on the law as currently briefed, the most difficult to sustain at summary judgment. The "no conspiracy" denial is a long shot given eXp's NAR membership and MLS participation. The independent contractor defense is creative but has to clear the brokerage-level agreement to follow MLS rules.

What may matter more, in the end, is what eXp has built outside the courtroom. The decision to eliminate broker-to-broker compensation entirely — and to push buyer-agent payment into seller concessions through documents like Pennsylvania's PAR Agreement of Sale — gives eXp something none of the other defendants can claim: a clean operating model going forward, designed from the ground up to be antitrust-defensible.

That model does not erase the damages-period exposure. But for a company with 89,000 agents and a market capitalization in the billions, it changes the calculus. eXp is positioned to litigate the past aggressively while having already removed itself from the practice plaintiffs are challenging. Whether that combination produces a favorable settlement, a trial verdict, or a new precedent for cloud-based brokerages is the open question of Batton 2.

Watch the June 2 joint status report for the first signal of how plaintiffs plan to respond.

Sources and references

1. Batton, et al. v. NAR, et al. (Batton 2), N.D. Ill. — eXp Realty's Answer to Second Amended Complaint, filed April 28, 2026.

2. Real Estate News, "eXp overhauls listing agreement, invites industry to use it" (July 27, 2024).

3. Inman, "eXp not doing broker-to-broker compensation, with caveats" (July 24, 2024).

4. Pennsylvania Association of Realtors, Standard Form CBC — Cooperating Broker Compensation Agreement.

5. NAR Settlement Agreement (Burnett v. NAR), final approval order.

6. Sitzer/Burnett v. NAR, W.D. Mo., trial verdict and post-trial rulings.

This post is the third installment in the Batton 2 Defenses Series, which examines the affirmative defenses filed by each defendant in the Batton 2 buyers' commission antitrust lawsuit.

Previous installments: Redfin's "We Already Left" Defense | United Real Estate's NAR Non-Membership Defense

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

📚 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.

Image Credit: Nano Banana