What NAR Legal Funds Have Been Up To

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In November 2018, the NAR Committee voted to award $60,000 in the following two combined cases:

  • Designworks Homes, Inc. and Charles Lawrence James v. Susan Horax DBA The Susan Horak Group RE/MAX Boone Realty and Boone Group LTD. DBA RE/MAX Boone Realty 
  • Designworks Homes, Inc. and Charles Lawrence James v. Columbia House of Records Realty, Inc. DBA House of Brokers Realty, Inc., Jaqueline Bulgin, Shannon L. O’Brien, Carol S. Dennignhoff, Nicole Waldschlager, Deborah Ann Fisher

    The plaintiff is a home designer and the defendants are listing agents and brokerages for homes built using the home designer’s design. Defendants physically measured and created floorplan drawings of the homes or engaged third-party entities to create floorplans of the homes. The home designer alleges that these floorplans violate his copyrights in the home design and technical drawings

 

Spring 2018 - NAR provided funding of $340,000 in one case as follows:

C.A.R. v. PDFfiller

CAR sued PDFfiller and its principals for copyright infringement based on the fact that PDFfiller’s website includes CAR’s copyrighted real estate transaction forms without CAR’s authorization, and further, that PDFfiller unlocked CAR’s forms to allow users to edit the forms’ contents. In response, PDFfiller filed an antitrust-based counterclaim against CAR and its subsidiaries, REBS and zipLogix, asserting that they engaged in an unlawful tying arrangement by requiring that CAR members exclusively use zipLogix to complete the CAR forms. CAR filed a motion to dismiss, which was denied because PDFfiller’s counterclaim entails questions of fact.

Following the meeting, the parties dismissed the case 
with prejudice by mutual agreement and without admission of liability.

In the fall of 2017, NAR provided funding of $336,666 in three cases as follows:

 

a. State of Washington v. United States of America

The Washington Association of REALTORS® is participating in a coalition with other industry associations to support the State of Washington’s request for U.S. Supreme Court review of the Ninth Circuit Court of Appeals decision in this case. That decision ordered the State of Washington to reconstruct or remove culverts beneath roadways throughout the State of Washington because those culverts allegedly interfere with salmon migration, in violation of certain 19th century Indian treaties. The estimated cost of such culvert remediation is approximately $2.00 billion.

 

b. Texas Association of REALTORS® v. PDFfiller, Inc.

In December 2016, TAR sued PDFfiller for copyright and trademark infringement for making certain TAR real estate forms available on the PDFfiller website for use with PDFfiller’s forms-filling software. This is the same defendant as in the California Association of REALTORS® litigation now pending in Massachusetts. The case is now in discovery.

 

c. Waldo v. Cousins and South Carolina Association of REALTORS ®

Waldo challenged the arbitration award issued by the South Carolina Association of REALTORS® in favor of Sperry Van Ness/Michael Cousins. Waldo claims that the award was not supported by evidence demonstrating that Cousins was procuring cause, and that the arbitration panel’s award was arbitrary, capricious, and contrary to law. The Master-In-Equity designated to decide the case vacated the arbitration award on the basis of her conclusion that the award was made in “manifest disregard of law.” She held that South Carolina co-brokerage agreements must be in writing, and because there was no written agreement to share the commission the arbitration panel made an error of law in granting an award to Cousins. Typically, the “error of law” standard is narrow, and requires arbitrators to know and intentionally disregard the applicable law. Cousins and the South Carolina Association of REALTORS® are appealing the ruling.



May 2017 NAR provide funding of $500,000 in four cases as follows:

C.A.R. v. PDFfiller

CAR sued PDFfiller and its principals for copyright infringement because the PDFfiller website includes certain of CAR’s copyrighted zipform real estate transaction forms. PDFfiller refused to take the forms off its website and claims that inclusion of those forms on the PDFfiller website is not infringing. PDFfiller filed an antitrust-based counterclaim against CAR and its subsidiaries REBS and zipLogix, asserting that they engage in an unlawful tying arrangement by requiring CAR member form users to use exclusively the zipLogix forms-completion software to complete the forms. CAR moved to dismiss those antitrust counterclaims, and discovery has commenced.

Oregonians for Floodplain Protection

In April 2016, the National Marine Fisheries Service (“NMFS”) issued a Biological Opinion (“BiOp”) concluding that FEMA’s implementation of the National Flood Insurance Program (NFIP) in Oregon violates the Endangered Species Act (“ESA”) by allowing and encouraging real estate development in floodplains and jeopardizing sixteen species of endangered fish and one species of killer whale. Relying on the BiOp, NMFS directed FEMA to change its floodplain mapping protocols and expand floodplain maps to include areas never before classified as floodplains and severely restrict nearly all development in floodplain-designated areas, unless such development would have no adverse effect on fish species categorized as endangered pursuant to the ESA.
In response, the Oregonians for Floodplain protection intends to initiate litigation to challenge FEMA’s implementation of the NMFS BiOp. The Coalition will assert that FEMA lacks authority under the NFIP to limit development in floodplains for reasons other than public safety and that the BiOp’s analysis of the effects of floodplain development on the ESA-listed species is scientifically flawed and “grossly overestimates” the impacts of the NFIP on endangered species and their habitats.

 

Owen v. City of Portland


In 2015, the City of Portland adopted an Ordinance requiring landlords to pay “relocation assistance” ($2,900 for a studio unit, $3,300 for a one bedroom unit, $4,200 for a two-bedroom unit, and $4,500 for a three bedroom or larger unit) to tenants who: (a) leave a tenancy after receiving notice of a rent increase of 10% or more within a 12-month period; (b) have received a 90-day no-cause lease termination notice; or (c) are not offered a renewal at the end of a fixed term lease under substantially the same terms as the prior lease. Landlords who violate the Ordinance are liable to the tenant for an amount up to three months’ rent, actual damages, relocation assistance, and reasonable attorney fees and costs.

Plaintiffs filed suit against the City seeking invalidation of the Ordinance. They claim that the Ordinance amounts to impermissible rent control in violation of Oregon’s statutory prohibition of rent control in non-emergency situations, that the Ordinance impairs existing contracts in violation of the U.S. Constitution, and that it exceeds the City’s authority to establish a cause of action in state court.

Guam Contractors Association v. U.S. Department of Homeland Security


An employer may petition the U.S. Citizenship and Immigration Service (USCIS) to issue H2B visas to permit admission of temporary (nonimmigrant) nonagricultural workers for limited periods of time where there are insufficient United States workers available and the work to be done is temporary one-time, seasonal, peakload, or intermittent need work.

Plaintiffs allege that USCIS reduced the approval rate for such petitions by employers in Guam from 95% in 2015 to 6.8% in the year ending May 2016, and that this reduction is the result of an unlawfully arbitrary change in USCIS policy or practice in issuing such visas, including a change in interpreting or applying the definition of the statutory term “temporary.”

The Guam Contractors Association, a nonprofit membership organization of contractors, subcontractors, material suppliers, equipment lessors, and others, brought this case challenging USCIS’ reduction in issuing H2B visas. They claim that this substantial reduction in the number of visas available to permit temporary workers seriously and adversely affects their opportunity to secure labor for their operations, and that their businesses and the Guam economy generally suffers seriously as a result. The Guam Association of REALTORS® and its members are concerned about the impact on the real estate industry resulting from the unavailability of workers, including delays in or termination of real estate construction and development projects, and an overall “slowdown” of the Guam economy that results in other adverse impacts in the real estate market.