Scott Burnett v. National Association of Realtors Defendant HomeServices of America

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2664
___________________________
Scott Burnett; Ryan Hendrickson; Jerod Breit; Scott Trupiano; Jeremy Keel;
Frances Harvey; Hollee Ellis
lllllllllllllllllllllPlaintiffs - Appellees
Shelly Dreyer
lllllllllllllllllllllPlaintiff
Rhonda Burnett
lllllllllllllllllllllPlaintiff - Appellee
v.
National Association of Realtors
lllllllllllllllllllllDefendant
HomeServices of America
lllllllllllllllllllllDefendant - Appellant
Keller Williams Realty, Inc.; Realogy Holdings Corp.
lllllllllllllllllllllDefendants
BHH Affiliates, LLC; HSF Affiliates, LLC
lllllllllllllllllllllDefendants - Appellants

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RE/MAX LLC
lllllllllllllllllllllDefendant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 12, 2023
Filed: August 2, 2023
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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
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SMITH, Chief Judge.
HomeServices of America, Inc.; BHH Affiliates, LLC; and HSF Affiliates,
LLC (collectively, “HomeServices”) appeal from the district court’s1 denial of
HomeServices’s motion to compel unnamed class members to arbitrate their claims
against it. We affirm.
I. Background
Rhonda Burnett, Scott Burnett, Ryan Hendrickson, Jerod Breit, Scott Trupiano,
and Jeremy Keel (collectively, “plaintiffs”) filed a putative class action, alleging that
HomeServices; RE/MAX, LLC; National Association of Realtors (NAR); Realogy
Holdings Corp.; and Keller Williams Realty, Inc. enforce anticompetitive rules that
result in damages. Specifically, the plaintiffs alleged that the rules require home
sellers to compensate the home buyer’s broker. NAR is a national trade association
1The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
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of real estate brokers and agents. HomeServices, Realogy Holdings Corp., and Keller
Williams Realty, Inc. are national real estate broker franchisors that operate brokerage
subsidiaries, franchisees, or affiliates within the geographic regions covered by
several regional real estate Multiple Listing Services (MLSs). The plaintiffs alleged
that NAR created and implemented the anticompetitive rules and that the other
defendants enforce those rules through anticompetitive practices.
Two non-party real estate brokerage companies used by certain class members
to sell their homes—Reece & Nichols Realtors, Inc. (ReeceNichols) and BHH KC
Real Estate, LLC d/b/a Berkshire Hathaway HomeServices Kansas City Realty (BHH
KC)—are wholly owned subsidiaries of non-party HomeServices of MOKAN, LLC.
In turn, HomeServices of MOKAN, LLC is a wholly owned subsidiary of
HomeServices. Since at least 2014, ReeceNichols and BHH KC agents executed form
listing agreements (Listing Agreement(s)) with home sellers. Each version of the
Listing Agreement defines the parties as “SELLER(S)” and “BROKER.” See, e.g.,
R. Doc. 758-1, at 4, 12. In each instance, the broker is ReeceNichols or BHH
KC—non-parties to this lawsuit—not HomeServices. These Listing Agreements
include versions of arbitration agreements (Arbitration Agreement(s)) between certain
class members and non-parties ReeceNichols or BHH KC as the broker. The
2014–2017 Listing Agreements provided:
ARBITRATION AGREEMENT. Any controversy or claim between the
parties to this Contract, its interpretation, enforcement or breach (which
includes tort claims arising from fraud and fraud in the inducement), will
be settled by binding arbitration pursuant to[,] administered by[,] and
under the rules of the American Arbitration Association (AAA), or such
other neutral arbitrator agreed to by the parties. This agreement to
arbitrate will [be] construed and interpreted under the Federal
Arbitration Act, 9 U.S.C. Section 1, et. seq. While either party will have
all the rights and benefits of arbitration, both parties are giving up the
right to litigate such claims and disputes in a court or jury trial. The
results, determinations, findings, judgments and/or awards rendered
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through such arbitration will be final and binding on the parties hereto
and may be specifically enforced by legal proceedings. Judgment on the
award may be entered into any court having jurisdiction.
Neither party will be entitled to join or consolidate disputes by or
against others in any arbitration, or to include in any arbitration any
dispute as a representative or member of a class, or to act in any
arbitration in the interest of the general public or in any private attorney
general capacity.
R. Doc. 218-2, at 11 (fourth emphasis in original) (bold omitted); see also, e.g., R.
Doc. 218-2, at 18, 25, 33, 39, 47, 54, 61, 69, 82–83; R. Doc. 218-3, at 11, 18, 26, 33,
40, 47–48, 55–56.
Similarly, the 2018 Listing Agreements contained the following Arbitration
Agreement:
10. Arbitration Agreement:
Any dispute or claim between the parties to this Agreement, its
interpretation, enforcement or breach (which includes tort claims arising
from fraud and fraud in the inducement), will be settled by binding
arbitration pursuant to the rules of the American Arbitration Association
(AAA) and by a neutral arbitrator agreed to by the parties. This
agreement to arbitrate will be construed and interpreted under the
Federal Arbitration Act, 9 U.S.C. Section 1, et. seq and supersedes any
other agreement between the parties. While each party will have all the
rights and benefits of arbitration, both parties are giving up the right to
litigate such claims and disputes in a court. The results, determinations,
findings, judgments and/or awards rendered through such arbitration
will be final and binding on the parties hereto and may be specifically
enforced by legal proceedings. Judgment on the award may be entered
into any court having jurisdiction. Neither party will be entitled to join
or consolidate disputes by or against others in any arbitration.
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Additional information and resources regarding the use of arbitration
may be found at www.adr.org.
11. Jury Trial and Class Action Waiver:
Neither party may, in any court proceeding or dispute resolution
process, bring any dispute as a representative or member of a class, or
to act in the interest of the general public or in any private attorney
general capacity.
R. Doc. 218-2, at 92 (fourth emphasis in original) (bold omitted); see also, e.g.,
R. Doc. 218-3, at 63–64.
Finally, the 2019–2022 Listing Agreements likewise provided:
10. Arbitration Agreement:
Any dispute or claim between the parties to this Agreement, its
interpretation, enforcement or breach (which includes tort claims arising
from fraud and fraud in the inducement), will be settled by binding
arbitration. The parties will mutually agree and select any qualified
intermediary that is a certified Alternative Dispute Resolution specialist.
If the parties cannot agree upon a qualified intermediary to serve as
arbitrator, either party may initiate litigation in the appropriate state
court for the sole purpose of requesting that the court select a qualified
intermediary to serve as arbitrator. This agreement to arbitrate will be
construed and interpreted under the Federal Arbitration Act, 9 U.S.C.
Section 1, et. seq and supersedes any other agreement between the
parties. While each party will have all the rights and benefits of
arbitration, both parties are giving up the right to litigate such claims
and disputes in a court. The results, determinations, findings, judgments
and/or awards rendered through such arbitration will be final and
binding on the parties hereto and may be specifically enforced by legal
proceedings. Judgment on the award may be entered into any court
having jurisdiction. Neither party will be entitled to join or consolidate
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disputes by or against others in any arbitration. Additional information
and resources regarding the use of arbitration may be found at
www.adr.org.
11. Jury Trial and Class Action Waiver:
Neither party may, in any court proceeding or dispute resolution
process, bring any dispute as a representative or member of a class, or
to act in the interest of the general public or in any private attorney
general capacity. All parties waive all rights to a jury trial. For disputes
and claims that do not exceed the lesser of: a) $5,000.00 (five thousand
dollars); or b) the applicable jurisdictional limit of small claims court,
either party may bring such claims in small claims court in lieu of
arbitration.
R. Doc. 218-2, at 116 (seventh emphasis in original); see also, e.g., R. Doc. 218-3,
at 94; R. Doc. 758-1, at 10, 18, 26, 34; R. Doc. 758-2, at 10–11, 19–20, 28–29,
37–38.
Just above the signature line for “BROKER”—non-parties ReeceNichols or
BHH KC—and “SELLER” appears the following in all of the Listing Agreements:
CAREFULLY READ ALL TERMS AND PROVISION[S] ON ALL
PAGES OF THIS AGREEMENT AND ATTACHMENTS BEFORE
SIGNING. WHEN SIGNED, THIS IS A LEGALLY BINDING
CONTRACT. IF NOT UNDERSTOOD, CONSULT AN ATTORNEY
BEFORE SIGNING. THIS CONTRACT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
R. Doc. 218-2, at 12 (bold omitted); see also, e.g., R. Doc. 218-2, at 19, 26, 33, 40,
47, 54, 62, 70, 85, 93, 101, 109, 117; R. Doc. 218-3, at 12, 19, 26, 33, 41, 49, 57, 65,
71, 79, 87, 95; R. Doc. 758-1, at 11, 19, 27, 35, 43, 51, 59, 67, 75, 83, 92, 101, 110;
R. Doc. 758-2, at 12, 21, 30, 39.
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HomeServices moved to compel arbitration of the plaintiffs’ claims “305 days
after [the plaintiffs] filed the lawsuit.” Sitzer v. Nat’l Ass’n of Realtors, 12 F.4th 853,
855 (8th Cir. 2021). In support of its motion to compel, HomeServices conceded that
“neither the named plaintiffs nor any purported class member has any contract or
direct relationship with HomeServices relevant to the claims asserted in this case.”
R. Doc. 218, at 7. “The district court denied the motion, mainly because
HomeServices was not itself a party to the [plaintiffs’] [L]isting [A]greement. In a
footnote, the court also questioned whether HomeServices had waived its right to
arbitrate by ‘litigating this case . . . for almost one year.’” Sitzer, 12 F.4th at 855
(fourth alteration in original).
HomeServices appealed the denial of its motion to this court, and we affirmed.
Id. at 857. As a threshold matter, we held that courts—not arbitrators—determine
whether a party has waived its right to arbitration through default. Id. at 855–56.
Thereafter, we held that “HomeServices . . . waive[d] its right to arbitrate by actively
litigating this case in federal court for close to a year.” Id. at 856.
Subsequently, the district court granted the plaintiffs’ motion for class
certification, certifying classes of home sellers who listed their homes for sale on one
of the MLSs through an agent affiliated with one of the defendants.2
HomeServices then filed a second motion to compel arbitration as to the
unnamed class members who signed a Listing Agreement to arbitrate their claims.
The district court denied the motion to compel arbitration. First, it determined that
HomeServices had waived any purported arbitration rights. Specifically, it reasoned
that “[e]ven if the Eighth Circuit’s prior decision is not dispositive of this issue,
2This court denied the defendants’ petition for permission to appeal the class
certification order. See Burnett v. Nat’l Ass’n of Realtors, Eighth Circuit Case No.
22-8009.
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HomeServices had ample opportunity to raise its intention of asserting its arbitration
rights against unnamed class members prior to the [c]ourt’s class certification order.”
Burnett v. Nat’l Ass’n of Realtors, 615 F. Supp. 3d 948, 957 (W.D. Mo. 2022).
Second, it determined that even if “HomeServices did not waive its right to
compel arbitration, . . . HomeServices cannot enforce the Arbitration Agreements.”
Id. The district court began its analysis with the understanding that “the [c]ourt—not
an arbitrator—must address whether HomeServices can enforce the Arbitration
Agreements.” Id. at 959. It then determined that HomeServices could not enforce the
Arbitration Agreements. The court found “that, by the clear language of the
Arbitration Agreements, the only disputes or claims that the unnamed class members
agreed to arbitrate are disputes ‘between the parties.’” Id. at 960 (quoting R. Doc.
218-2, at 100). It noted that “every agreement contains the following provision:
‘Neither party will be entitled to join or consolidate disputes by or against others in
any arbitration.’” Id. (quoting R. Doc. 218-2, at 100).
The court also found that “HomeServices does not have a sufficiently close
relationship with ReeceNichols or BHH KC to enforce the Arbitration Agreements.
Further, because the Arbitration Agreements narrowly cover disputes between the
parties, failure to allow HomeServices to compel arbitration will not eviscerate the
underlying agreements.” Id. And it found that “the Arbitration Agreements
themselves prevent nonsignatories from being treated jointly for arbitration
purposes.” Id. Thus, “[e]ven if [p]laintiffs had joined ReeceNichols and BHH KC to
this lawsuit and asserted claims against them, the Arbitration Agreements do not
allow ReeceNichols, BHH KC, or [p]laintiffs to ‘join or consolidate disputes . . .
against’ HomeServices ‘in any arbitration.’” Id. (alteration in original) (quoting
R. Doc. 218-2, at 92). And the court pointed out that “ReeceNichols and BHH KC are
not being treated jointly for all purposes except for arbitration because they are not
parties to this lawsuit.” Id. at 960–61.
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The court also rejected the argument that the plaintiffs’ claims are so
intertwined with the Listing Agreements that HomeServices may enforce the
Arbitration Agreements. According to the court, “HomeServices is not a party to the
Listing Agreements and therefore cannot enforce the narrow, party-specific
Arbitration Agreements.” Id. at 961.
II. Discussion
On appeal, HomeServices argues that the district court erred in denying its
motion to compel arbitration of the unnamed class members because (1) it “filed its
motion to compel nine business days after the class was certified,” Appellant’s Br. at
15, and therefore did not waive its right to arbitration against the unnamed class
members; (2) “all gateway questions of arbitrability should be decided by the
arbitrator,” id. at 17; and (3) even if the district court decides the gateway question
of arbitrability, HomeServices may enforce the Arbitration Agreements.
We review de novo the district court’s “denial of a motion to compel
arbitration” and “interpretation of a contract.” Triplet v. Menard, Inc., 42 F.4th 868,
870 (8th Cir. 2022). We review the district court’s “factual findings for clear error.”
Id. Applying this review standard, we hold that “[e]ven assuming HomeServices did
not waive its right to compel arbitration, . . . HomeServices cannot enforce the
Arbitration Agreements.” Burnett, 615 F. Supp. 3d at 957.
“Arbitration agreements are favored by federal law and will be enforced as long
as a valid agreement exists and the dispute falls within the scope of that agreement.”
Shockley v. PrimeLending, 929 F.3d 1012, 1017 (8th Cir. 2019) (internal quotation
marks omitted). Notwithstanding arbitration’s “favored status,” it “is a matter of
contract law” and “parties cannot be compelled to arbitrate unless they have
contractually agreed to be bound by arbitration.” Id. As a result, the court must
“determine whether the parties formed a valid contract that binds them to arbitrate
their dispute. As the party seeking to compel arbitration, [HomeServices] carries the
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burden to prove a valid and enforceable agreement.” Id. “At the most fundamental
level, assent is required for a contract or an agreement to exist.” Theroff v. Dollar
Tree Stores, Inc., 591 S.W.3d 432, 437 (Mo. 2020) (en banc).3
A. Delegation of Threshold Issues of Arbitrability
HomeServices argues that an arbitrator instead of the court must decide the
gateway issue of whether unnamed class members must arbitrate their claims. “First,”
it argues that “[t]he ‘incorporation of the AAA Rules into a contract requiring
arbitration’ is ‘a clear and unmistakable indication the parties intended for the
arbitrator to decide threshold questions of arbitrability.’” Appellant’s Br. at 16
(quoting Eckert/Wordell Architects, Inc. v. FJM Props. of Willmar, LLC, 756 F.3d
1098, 1100 (8th Cir. 2014)). Second, it argues that the Missouri Supreme Court has
held that the following language—“‘[a]ny controversy or claim’ or ‘[a]ny dispute or
claim’ between the parties, including claims related to the agreement’s ‘interpretation,
enforcement or breach’ will be settled by binding arbitration”—“constitutes a
‘delegation clause’ that is ‘clear in evincing a manifest intention to delegate threshold
questions of arbitrability to a neutral arbitrator.’” Id. at 16–17 (alterations in original)
(quoting Soars v. Easter Seals Midwest, 563 S.W.3d 111, 113–14 (Mo. 2018) (en
banc)).
Missouri law unquestionably permits contracting “parties” to make arbitration
agreements that commit issues such as arbitrability to their chosen arbitrator. Theroff,
591 S.W.3d at 439. The parties’ inclusion of “a ‘delegation provision’ in the
arbitration agreement” constitutes a “[c]ontractual arrangement[] to arbitrate gateway
questions of arbitrability.” Id. (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63,
68–69 (2010)). “A delegation provision is an additional, severable agreement to
3Neither party disputes that “Missouri law governs this case.” Shockley, 929
F.3d at 1017 (citing Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. 2014) (en
banc)).
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arbitrate threshold issues that is valid and enforceable unless a specific challenge is
levied against the delegation provision.” Id. (cleaned up). “We have previously held
the incorporation of the AAA Rules into a contract requiring arbitration to be a clear
and unmistakable indication the parties intended for the arbitrator to decide threshold
questions of arbitrability.” Eckert, 756 F.3d at 1100 (emphasis added) (citing Green
v. SuperShuttle Int’l, Inc., 653 F.3d 766, 769 (8th Cir. 2011)).
“When evaluating the intention of parties to delegate threshold arbitrability
issues to the arbitrator, courts should not assume that the parties agreed to arbitrate
arbitrability unless there is clear and unmistakable evidence that they did so.” Theroff,
591 S.W.3d at 439 (cleaned up); see also Eckert, 756 F.3d at 1100. “One can[not] be
forced into arbitration by a contract to which one is a stranger . . . .” Theroff, 591
S.W.3d at 439. “[W]hile a court’s authority under the Arbitration Act to compel
arbitration may be considerable, it isn’t unconditional.” Id. at 439–40 (quoting New
Prime Inc. v. Oliveira, 139 S. Ct. 532, 537 (2019)).
“Whether a particular arbitration provision may be used to compel arbitration
between a signatory and a nonsignatory is a threshold question of arbitrability.”
Eckert, 756 F.3d at 1100 (emphasis added). “[S]tate contract law governs the ability
of nonsignatories to enforce arbitration provisions.” Torres v. Simpatico, Inc., 781
F.3d 963, 971 (8th Cir. 2015) (alteration in original) (quoting Donaldson Co. v.
Burroughs Diesel, Inc., 581 F.3d 726, 732 (8th Cir. 2009)). Crucial to this case,
Missouri law provides that “[o]nly parties to a contract and any third-party
beneficiaries of a contract have standing to enforce that contract. To be bound as a
third-party beneficiary, the terms of the contract must clearly express intent to benefit
that party or an identifiable class of which the party is a member.” Id. (emphases
added) (quoting Verni v. Cleveland Chiropractic Coll., 212 S.W.3d 150, 153 (Mo.
2007) (en banc)). A “strong presumption” exists “[i]n cases where the contract lacks
an express declaration of that intent” “that the third party is not a beneficiary and that
the parties contracted to benefit only themselves.” Id. (quoting Verni, 212 S.W.3d at
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153). “Furthermore, a mere incidental benefit to the third party is insufficient to bind
that party.” Id. (quoting Verni, 212 S.W.3d at 153).
Here, HomeServices conceded before the district court that “neither the named
plaintiffs nor any purported class member has any contract or direct relationship with
HomeServices relevant to the claims asserted in this case.” R. Doc. 218, at 7.
Moreover, the Listing Agreements and their included Arbitration Agreements do not
name HomeServices as a party or third-party beneficiary. In fact, HomeServices is not
mentioned anywhere in the Listing Agreements or Arbitration Agreements. As the
district court correctly observed, “the parties to these agreements are narrowly defined
as either ReeceNichols or BHH KC and the unnamed class member(s) who signed the
Listing Agreement.” Burnett, 615 F. Supp. 3d at 958. Furthermore, these parties
expressly stated in the Arbitration Agreements that arbitration should be administered
pursuant to the AAA Rules only when the dispute or claim is “between the parties.”
R. Doc. 218-2, at 92.4 As the district court concluded, this “narrow, party-specific
language . . . does not clearly and unmistakably delegate to an arbitrator threshold
issues of arbitrability between nonparties, including HomeServices.” Burnett, 615 F.
Supp. 3d at 958; see also Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1127 (9th
Cir. 2013) (holding that even though the arbitration agreement contained a delegation
4And, as the district court correctly noted,
the 2014–2017 Arbitration Agreements do not clearly and unmistakably
incorporate the AAA Rules. Those agreements state that arbitration will
be settled by binding arbitration pursuant to and administered by the
rules of the AAA, “or such neutral arbitrator agreed to by the parties.”
See, e.g., Doc. #218-2, p. 11. In other words, the parties may agree to
binding arbitration pursuant to and administered by something other
than the AAA.
Burnett, 615 F. Supp. 3d at 959 n.8 (emphasis added).
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clause, the contract’s limitation to “either you or we” meant there was not “clear and
unmistakable evidence that Plaintiffs agreed to arbitrate arbitrability with
nonsignatories”).5
Based on the foregoing, we hold that the district court correctly concluded that
“the [c]ourt—not an arbitrator—must address whether HomeServices can enforce the
Arbitration Agreements.” Burnett, 615 F. Supp. 3d at 959.
B. Enforcement of the Arbitration Agreements
Having determined the gateway issue of arbitrability, we must now address
whether the district court correctly determined that HomeServices cannot enforce the
Arbitration Agreements against the unnamed class members. We conclude that it did.
HomeServices is neither a party nor a third-party beneficiary of the Listing
Agreements or the Arbitration Agreements. See supra Part II.A. Thus, the Arbitration
Agreements are inapplicable to any dispute between the unnamed class members and
HomeServices. Our conclusion is buttressed by the Arbitration Agreements’ express
statement that “[n]either party”—the sellers and non-parties ReeceNichols or BHH
KC—“will be entitled to join or consolidate disputes by or against others in any
5This is not a case in which a delegation provision “broadly encompassed ‘any
claim, dispute, or other matter in question arising out of or related to the contract’
regardless of whether the dispute was between the parties to the contract.” Burnett,
615 F. Supp. 3d at 958–59 (quoting Eckert, 756 F.3d at 1099); see also Fallo v.
High-Tech Inst., 559 F.3d 874, 876, 878 (8th Cir. 2009) (holding that arbitration
provision stating that “[a]ny controversy or claim arising out of or relating to this
Agreement . . . shall be settled by arbitration in accordance with the Commercial
Rules of the American Arbitration Association” “constitute[d] a clear and
unmistakable expression of the parties’ intent to leave the question of arbitrability to
an arbitrator”). Instead, the Arbitration Agreements expressly stated that the dispute,
claim, or controversy must be “between the parties” to the agreement. Burnett, 615
F. Supp. 3d at 959 (quoting R. Doc. 758-1, at 10).
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arbitration.” Burnett, 615 F. Supp. 3d at 960 (quoting R. Doc. 218-2, at 100). This
clause “demonstrat[es] the narrow, party-specific scope of the Arbitration
Agreements.” Id. We further note that the class members’ claims do not allege that
non-signatory HomeServices breached duties to them “purportedly assigned it by the
agreement.” Abdiana Props., Inc. v. Bengston, 575 S.W.3d 754, 762 (Mo. Ct. App.
2019) (quoting Netco, Inc. v. Dunn, 194 S.W.3d 353, 361 (Mo. 2006) (en banc)). We,
therefore, hold that the district court did not err in denying HomeServices’s motion
to compel the unnamed class members to arbitrate their claims against it.6
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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6Despite its concession that it was not a party to the Arbitration Agreements,
HomeServices nonetheless argues that it may compel the unnamed class members to
arbitrate because (1) “the relationship between [HomeServices] and [ReeceNichols
and BHH KC] is so close, that failing to [compel arbitration] would eviscerate the
arbitration agreement,” Appellant’s Br. at 42 (internal quotation marks omitted); (2)
the plaintiffs treated HomeServices, ReeceNichols, and BHH KC as a “single unit”
and therefore cannot “avoid arbitration,” id. at 36 (internal quotation marks omitted);
and (3) the plaintiffs’ claims are so closely intertwined with the Listing Agreements
that HomeServices may enforce the Arbitration Agreements in the Listing
Agreements. We reject HomeServices’s various estoppel arguments for the same
reasons set forth by the district court. See Burnett, 615 F. Supp. 3d at 960–61.
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