Tuccori

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

James Tuccori, individually and on behalf

of all others similarly situated,

Plaintiff,

No. 24 CV 150

v.

Judge Lindsay C. Jenkins

At World Properties,

Defendant.

Memorandum Opinion and Order

This order resolves Plaintiffs’ motion to consolidate, see dkt. 52, which is

granted for the reasons discussed below.

Seven Plaintiffs1 in seven separate cases seek consolidation under Federal

Rule of Civil Procedure 42(a). After granting Plaintiffs’ motion to reassign on

relatedness grounds under Local Rule 40.4, all seven cases were assigned to this

court. [Dkts. 43, 51.] The seven pending cases are: Tuccori v. At World Properties, No.

1:24-cv-00150; Maslanka v. Baird & Warner, Inc., No. 1:24-cv-02399; Hartz v. Real

Estate One, Inc., No. 1:24-cv-03160; Wallach v. Silvercreek Realty Group LLC, No.

1:24-cv-3356; Lopez v. NextHome, Inc., 24-cv-11735 (“Lopez I”); and Zawislak v.

Equity Realtors, L.L.C. d/b/a Equity Real Estate, No. 24-cv-9039; Lopez v. Jennifer

Ames Chicago, Inc., 1:25-cv-04207 (N.D. Ill.) (“Lopez II”).

In each case, Plaintiffs generally raise allegations of anti-competitive practices

by real estate brokers, brokerage franchisors, and other real estate companies arising

from residential real estate transactions. According to Plaintiffs, each of the sixteen

Defendants conspired with the National Association of Realtors, a national trade

association, by adopting and enforcing rules, policies, and practices that apply to

homes listed for sale on NAR’s Multiple Listing Service, a database that provides

agents and brokers with access to listings. The alleged practices include, for example,

concealing the commission split between the agents; permitting buyer agents to

falsely represent that their services were free; restricting or eliminating the ability

to change the buyer agent commission after a purchase offer was made; and limiting

access to lockboxes. In the end, Plaintiffs say, these practices resulted in sellers

paying concealed and/or artificially inflated commissions.

1 Plaintiffs are James Tuccori, Mary Maslanka, David Freifeld, Matthew Hartz, Janet

Wallach, Courtney Foregger, Kevin Cwynar, Dawid Zawislak, Michael D’Acquisto and

Alejandro Lopez.

Tuccori’s class action complaint brings claims for unjust enrichment and

violations of the Sherman Antitrust Act, 15 U.S.C. § 1, the Illinois Antitrust Act, 740

ILCS 10/1 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices

Act, 815 ILCS 505/1 et seq. [Dkt. 1-2, ¶ 1-2, 10-22, 34-46.] The remaining cases raise

(or raised) the same or similar allegations under the Sherman Antitrust Act and

under state law.

As noted, the court granted Plaintiffs’ unopposed motion to reassign the cases

as related. [Dkts. 43, 51.] Plaintiffs now seek to consolidate the cases. Two Defendants

object: HomeSmart International, LLC and Fathom Realty, who are each named as

Defendants in Zawislak.2

Legal Standard

Federal Rule of Civil Procedure 42(a) allows the court to consolidate cases if

they “involve a common question of law or fact.” Fed. R. Civ. P. 42(a). Consolidation

is meant to promote judicial efficiency, but cases should not be consolidated if

prejudice to any of the parties outweighs the value of increased efficiency. Westfield

Ins. Co. v. Indem. Ins. Co. of N. Am., 2017 WL 7803767 at *2 (C.D. Ill. Mar. 7, 2017).

Consolidation can be ordered where there is a risk of inconsistent rulings. Id. at *2.

A district court’s decision granting or denying a motion to consolidate is reviewed for

an abuse of discretion. Star Ins. Co. v. Risk Mktg. Group, Inc., 561 F.3d 656, 660 (7th

Cir. 2009).

Analysis

Consolidation of all seven cases is warranted here because the factual and legal

issues of the cases significantly overlap. All seven cases generally concern anti-

competitive practices that Plaintiffs allege resulted in inflated commissions,

including policies requiring seller agents to make blanket offers of compensation to

buyer agents regardless of experience, limitations on buyer-agent commissions, and

mechanisms that permit buyer agents to falsely represent that their services are free.

[Dkt. 53 at 5-6.] All seven cases involve common legal and factual questions

concerning, among other things, the existence of an antitrust conspiracy under the

Sherman Act, whether the challenged policies amount to unlawful restraints on

trade, whether commissions were in fact impacted by the practices described, and

whether the Defendants’ conduct violated applicable state antitrust or deceptive

practices laws.

Defendants HomeSmart and Fathom do not seriously argue otherwise, but

they do oppose consolidation for a few other reasons. First, they say that consolidating

is inappropriate because there is no new operative pleading in Zawislak following

2 Defendant Live & Play LLC d/b/a Engel & Voelkers Chicago, a party to Lopez I, has

not taken a position on the motion.

dismissal of the first amended complaint without prejudice in July. [Dkt. 61 at 4-5.]

Second, they maintain that Zawislak’s claims as originally pled differ in some

respects from the claims raised in other cases. For example, the Malsanka plaintiffs

pursue class action claims on behalf of both buy-side and sell-side clients, whereas

Zawislak involves only buy-side claims. And Wallach and Hartz raise claims under

Idaho and Michigan statutes, whereas Tuccori, and Lopez I and II raise Illinois state

law claims. [Dkt. 61 at 2-3, 5.]

These differences do not make consolidation inappropriate. Claims need not

“neatly overlap” to warrant consolidation. Brunner v. Jimmy John’s, LLC, 2016 WL

7232560, at *2 (N.D. Ill. Jan. 14, 2016). Rather, Rule 42 requires only “a common

issue of law or fact.” Rule 42(a) (emphasis added). Here, all seven cases concern

brokerages, brokerage franchisors, and other real estate companies alleged efforts to

inflate real estate commissions paid to brokers. Zawislak’s first amended complaint

raised claims in this vein under the Sherman Act and the Illinois antitrust and

deceptive practices acts. And while it is true that the Malanska, Wallach and Hartz

cases vary slightly in their focus, the court has no trouble concluding that all the cases

involve at least one common question of law and of fact.

As to the argument that consolidation is premature because Zawislak has not

yet filed a second amended complaint, it is true that the court granted Zawislak

additional time to file his amended pleading. But the court did so with the intent of

resolving the consolidation and reassignment questions first. [Zawislak, No. 24-cv-

9039, Dkt. 79.] Indeed, to have required Zawislak to amend his pleading before

deciding whether consolidation was appropriate would only inject more inefficiency

into the case. Had Zawislak filed a second amended complaint, Fathom and

HomeSmart would have filed another motion to dismiss, which would have been

rendered moot by an amended consolidated complaint. In this way, Hobbs v. Haaland

on which Defendants rely is distinguishable. 2025 WL 506660, at *6 (E.D. Wis. Feb.

14, 2025) (denying without prejudice plaintiff’s motion to consolidate, noting that

defendants were “entitled to resolution of their motion to dismiss before the court

considers a motion to consolidate filed eighteen months after the defendants filed

their motion to dismiss.”)

The court agrees with Plaintiffs that consolidation will result in a substantial

savings of judicial time and effort. Thirteen of the sixteen Defendants have reached

a global settlement with all the Plaintiffs, so consolidation will avoid the need to file

separate preliminary approval motions in each case; to proceed otherwise would

waste everyone’s time and resources. And though HomeSmart and Fathom have

made their intent to litigate clear, they can do so in the consolidated case with as

much efficiency as they could in the Zawislak case. The remaining parties can proceed

with a global settlement. In this way, the court fails to see how consolidation would

unfairly prejudice HomeSmart or Fathom.

Finally, consolidation will help streamline the cases and allow the court to

conserve substantial resources by avoiding the potential for inconsistent rulings on

important issues and, if necessary, allow the court to try any claims that remain

together. Tipsword v. IFDA Servs., Inc., 2010 WL 1521612, at *1 (S.D. Ill. Apr. 14,

2010).

Conclusion

The motion to consolidate is granted under Rule 42(a). The Tuccori case will

be the lead case and all future filings will occur in this case. The court will separately

set a date for filing an amended consolidated complaint and a responsive pleading

deadline.

Enter: 24-cv-150 2a

Date: October 22, 2025

Lindsay C. Jenkins

United States District Court Judge