Concerned about the potential implications of a New Hampshire law compelling licensure, plaintiff Skynet Corporation, the operator of ZeroBrokerFees.com, filed a three-count federal lawsuit last year in New Hampshire against New Hampshire Real Estate Commission officials, asking the court to declare certain provisions of the New Hampshire Real Estate Practice Act unconstitutional restrictions on plaintiff’s rights to free speech.
ZeroBrokerFees.com apparently only displays properties for sale on its website, nothing more, and has asked the court to declare the relevant provisions - which prohibit plaintiff from "listing and advertising New Hampshire properties for sale on Internet websites and/or in print" - in contravention of the U.S. Constitution. Plaintiff also seeks an order prohibiting defendants from "enforcing New Hampshire's real estate licensing laws, policies, and regulations in a manner that impairs [plaintiff's] ability to disseminate information and to operate its business and from imposing fines or criminal penalties, or otherwise subjecting [plaintiffs] to harassment."
In March 2007, the Magistrate Judge assigned to the case denied the defendants’ motion to dismiss the suit, which was based upon a variety of purported procedural deficiencies.
Similar to the regulation at issue in the ForSaleByOwner.com litigation in California a few years ago (wherein the court ultimately ruled in favor of the website), the New Hampshire law allegedly requires any entity that charges a fee to disseminate information about properties being offered for sale to be licensed in New Hampshire. As did the California statute, the New Hampshire law provides an express exception for "newspaper[s] and other publication[s] of general circulation."
The court’s decision is not a substantive ruling on plaintiff’s claims. Instead it signals that the plaintiff may proceed with its case before the court. Shortly after the court's ruling, the commission officials answered the plaintiff's complaint. Their position, in part, seems to be that the subject provision is constitutional on its face and as applied, but that "it is likely that the Act does not apply to the Plaintiff."
The bench trial in this case, espected to last no more than five days, is scheduled to commence on November 6, 2007 (subject to rulings on any dispositive motions filed on or before July 16, 2007). In their revised discovery plan, the parties state that "settlement is unlikely, although not inconceivable." Presently the parties are conducting pre-trial discovery.
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