For those of you unfamiliar with this case, check out my guest post that appeared on May It Please The Court just after Judge St. Eve ruled last year on Craigslist's motion for judgment on the pleadings. After the court denied plaintiff's subsequent motion to reconsider, plaintiff appealed, and for the last six months the Seventh Circuit has suspended briefing, presumably to allow for a negotiated resolution.
Apparently a quick settlement isn't in the cards. Late last week the Court of Appeals jump-started the case by issuing a briefing schedule. Appellant Chicago Lawyers' Committee for Civil Rights Under Law, Inc.'s ("CLC") brief is due October 9, Appellee Craigslist's brief is due November 20, and CLC's reply brief is due December 7, 2007.
It will be interesting to see how the the Ninth Circuit's Roommate.com decision figures in to the parties' briefs.
Monday, September 24, 2007
Tuesday, September 11, 2007
UPDATE: U.S.A. v. National Association of Realtors
District Judge Filip held a status hearing this morning in US v. NAR.
Discovery closes in a few months (November 21), and NAR's counsel stated that his client would "quite likely" be filing a motion for summary judgment thereafter. The court directed that such motion should be filed no later than January 14, 2008. The court set response and reply deadlines, and anticipated ruling on such motion (if filed) around April 25, 2008.
The parties expect a four week bench (non-jury) trial, and Judge Filip estimated that the trial would commence in early June 2008 (3 full days, one partial day, per week). Of course if NAR does file a motion for summary judgment, and the court rules in its favor, a trial would not be necessary.
A status hearing was scheduled for November 28, 2007 at 9:30 a.m. before Judge Filip.
Discovery closes in a few months (November 21), and NAR's counsel stated that his client would "quite likely" be filing a motion for summary judgment thereafter. The court directed that such motion should be filed no later than January 14, 2008. The court set response and reply deadlines, and anticipated ruling on such motion (if filed) around April 25, 2008.
The parties expect a four week bench (non-jury) trial, and Judge Filip estimated that the trial would commence in early June 2008 (3 full days, one partial day, per week). Of course if NAR does file a motion for summary judgment, and the court rules in its favor, a trial would not be necessary.
A status hearing was scheduled for November 28, 2007 at 9:30 a.m. before Judge Filip.
Tuesday, September 4, 2007
Federal judge enters preliminary injunction against KREC Commissioners, rules certain state laws unconstitutional
I've written about River Oaks Management v. Kentucky Real Estate Commission on several occasions (most recently here), and about an hour ago an anonymous commenter to an earlier post advised me that the court had ruled on several pending motions. Whoever you are, thank you! Here is a link to today's Order and accompanying Opinion.
As you can see, Judge Simpson granted plaintiffs' request for a preliminary injunction, thereby prohibiting KREC's Executive Director and Commissioners from (1) enforcing the prohibition against splitting fees with or compensating a real estate broker licensed in another state for the interstate brokerage of Kentucky real estate, and (2) enforcing the prohibition against aiding and abetting a real estate broker licensed in another state in the interstate brokerage of Kentucky real estate.
The court also ruled that a statutory provision at issue and a related regulation were unconstitutional. To learn more, click on the "Opinion" link, above.
As you can see, Judge Simpson granted plaintiffs' request for a preliminary injunction, thereby prohibiting KREC's Executive Director and Commissioners from (1) enforcing the prohibition against splitting fees with or compensating a real estate broker licensed in another state for the interstate brokerage of Kentucky real estate, and (2) enforcing the prohibition against aiding and abetting a real estate broker licensed in another state in the interstate brokerage of Kentucky real estate.
The court also ruled that a statutory provision at issue and a related regulation were unconstitutional. To learn more, click on the "Opinion" link, above.
Friday, August 31, 2007
Significant rulings in Hackman v. Dickerson Realtors, et al
It has been some time since I last wrote about Greg Hackman's private antitrust lawsuit filed against multiple real estate players in Rockford, Illinois. But earlier today Judge Bucklo issued a 50 page opinion in the case, ruling on a number of motions that have been pending before her. Here's a summary of her decision, which is more or less broken down by the relevant defendants.
Century 21. Apparently plaintiffs have settled with Century 21 Country North, Inc. and dismissed it from the case.
Diane Parvin. Parvin asked the court to compel arbitration of plaintiffs' tortious interference claim, in light of an agreement Hackman made as a member of the Rockford Association of Realtors ("RAAR"). Plaintiffs had alleged that in August 2006 Parvin falsely told Hackman that a property was not available for his client to see, preventing Hackman from submitting an offer.
After analyzing the Federal Arbitration Act, Association bylaws, the Code of Ethics and Arbitration Manual, and determining whether Hackman's beef constituted a contract dispute, the court ruled that "[n]o matter how Hackman defines his own claim, disputes between realtors concerning violations of the MLS rules are 'contractual disputes' under Article XVII [of the RAAR bylaws]. Therefore, they are subject to arbitration."
However, the court ruled that Hackman's separate allegations that Parvin "interfered with his valid business relationships with potential clients by making derogatory statements about Hackman is . . . a tort claim . . . [and] is not subject to arbitration." But see my discussion below with respect to the inadequacy of the tort claim against Parvin. Finally, the court denied Parvin's request to suspend the entire judicial proceeding while the MLS rule matter is being arbitrated.
Rockford Association of Realtors/Illinois Association of Realtors. Dismissing Sherman Act and Illinois Antitrust Act claims against RAAR, the court relied in part on the U.S. Supreme Court's recent ruling in Bell Atlantic Corp v. Twombly, noting that "an allegation of encouragement is not a sufficient allegation of fact that raises Hackman's right to relief above a speculative level." Also, the court - citing lack of jurisdiction - dismissed requests by Hackman to enjoin RAAR and IAR from conducting an ethics hearing against Hackman and to grant declaratory relief.
Prudential/Jessica Licary. The court also dismissed Hackman's state and federal antitrust claims against Prudential and Licary, again referring to Bell Atlantic:
Melissa Smith/Lori Reavis/Ray Young. The court denied motions to dismiss the tortious interference with prospective economic advantage claims against these defendants, finding that Hackman's allegations against them did not require an allegation that a contract existed. The court added that Hackman has acknowledged that he did not intend to include Ray Young in his defamation claim, and denied Reavis' request that Hackman elaborate on the tort claim.
Young/Michael Dunn/Smith/Dickerson Realtors. Requests to disaggregate compound allegations were denied as to the antitrust claims, but granted as to the defamation and tortious interference counts. Thus Hackman will presumably be filing an amended complaint in the near future, perhaps not just to comply with this final part of the opinion, but to strengthen, if possible, his antitrust claims against various defendants so that they comply with Bell Atlantic.
WHAT DOES THIS OPINION TEACH US? First, as expected, Bell Atlantic has some serious teeth. For a Section 1 claim, if you don't have good, preferably direct, evidence of an agreement, and instead are simply relying on observed, parallel conduct, your claim is unlikely to survive a motion to dismiss. But note the court cited Bell Atlantic when considering Hackman's Section 2 claim and his defamation claim as well. Bell Atlantic means business, in the Section 1 arena and beyond.
Second, this opinion should remind all nontraditional brokers/agents out there that the antitrust laws are not your only potential weapons against objectionable practices. The court sustained several defamation claims and claims of tortious interference with prospective economic advantage. As Judge Bucklo explained in detail, the latter has the benefit of not requiring proof of a contract, and both claims, of course, do not require proof of a conspiracy. Each can be used, when appropriate, against unilateral conduct. And in the Hackman case, neither claim appears to be subject to arbitration.
I know it was issued just in the last few hours, and I've only read through it once, but I think that Judge Bucklo's opinion is a must read for any and all brokers/agents who may be contemplating legal action against "difficult" brokers/agents in their area. While bylaws will vary from association to association, and the common law will vary from state to state (here Judge Bucklo looked to Illinois law when considering plaintiffs' tort claims), the applicability of Bell Atlantic, and the potential utilization of tort claims against actionable, unilateral conduct, should be considered by all potential plaintiffs, regardless of jurisdiction.
Century 21. Apparently plaintiffs have settled with Century 21 Country North, Inc. and dismissed it from the case.
Diane Parvin. Parvin asked the court to compel arbitration of plaintiffs' tortious interference claim, in light of an agreement Hackman made as a member of the Rockford Association of Realtors ("RAAR"). Plaintiffs had alleged that in August 2006 Parvin falsely told Hackman that a property was not available for his client to see, preventing Hackman from submitting an offer.
After analyzing the Federal Arbitration Act, Association bylaws, the Code of Ethics and Arbitration Manual, and determining whether Hackman's beef constituted a contract dispute, the court ruled that "[n]o matter how Hackman defines his own claim, disputes between realtors concerning violations of the MLS rules are 'contractual disputes' under Article XVII [of the RAAR bylaws]. Therefore, they are subject to arbitration."
However, the court ruled that Hackman's separate allegations that Parvin "interfered with his valid business relationships with potential clients by making derogatory statements about Hackman is . . . a tort claim . . . [and] is not subject to arbitration." But see my discussion below with respect to the inadequacy of the tort claim against Parvin. Finally, the court denied Parvin's request to suspend the entire judicial proceeding while the MLS rule matter is being arbitrated.
Rockford Association of Realtors/Illinois Association of Realtors. Dismissing Sherman Act and Illinois Antitrust Act claims against RAAR, the court relied in part on the U.S. Supreme Court's recent ruling in Bell Atlantic Corp v. Twombly, noting that "an allegation of encouragement is not a sufficient allegation of fact that raises Hackman's right to relief above a speculative level." Also, the court - citing lack of jurisdiction - dismissed requests by Hackman to enjoin RAAR and IAR from conducting an ethics hearing against Hackman and to grant declaratory relief.
Prudential/Jessica Licary. The court also dismissed Hackman's state and federal antitrust claims against Prudential and Licary, again referring to Bell Atlantic:
In the antitrust context, the holding of Bell Atlantic requires that an antitrust plaintiff pleading the existence of a conspiracy or agreement to monopolize or restrain trade do more than conclusorily plead the existence of an agreement or conspiracy, but rather “a complaint with enough factual matter (taken as true) to suggest that an agreement was made.”Like above, the court found Hackman's complaint insufficient here, noting that he "presents no evidence of an agreement other than evidence of parallel conduct." The court also dismissed a claim for what turned out to be "tortious interference with prospective economic advantage," noting the absence of any specific allegations of wrongful conduct by Prudential or Licary. Such tort-like claim against Parvin was also dismissed. However, a defamation per se claim against Prudential and Licary survived the court's ruling.
Melissa Smith/Lori Reavis/Ray Young. The court denied motions to dismiss the tortious interference with prospective economic advantage claims against these defendants, finding that Hackman's allegations against them did not require an allegation that a contract existed. The court added that Hackman has acknowledged that he did not intend to include Ray Young in his defamation claim, and denied Reavis' request that Hackman elaborate on the tort claim.
Young/Michael Dunn/Smith/Dickerson Realtors. Requests to disaggregate compound allegations were denied as to the antitrust claims, but granted as to the defamation and tortious interference counts. Thus Hackman will presumably be filing an amended complaint in the near future, perhaps not just to comply with this final part of the opinion, but to strengthen, if possible, his antitrust claims against various defendants so that they comply with Bell Atlantic.
WHAT DOES THIS OPINION TEACH US? First, as expected, Bell Atlantic has some serious teeth. For a Section 1 claim, if you don't have good, preferably direct, evidence of an agreement, and instead are simply relying on observed, parallel conduct, your claim is unlikely to survive a motion to dismiss. But note the court cited Bell Atlantic when considering Hackman's Section 2 claim and his defamation claim as well. Bell Atlantic means business, in the Section 1 arena and beyond.
Second, this opinion should remind all nontraditional brokers/agents out there that the antitrust laws are not your only potential weapons against objectionable practices. The court sustained several defamation claims and claims of tortious interference with prospective economic advantage. As Judge Bucklo explained in detail, the latter has the benefit of not requiring proof of a contract, and both claims, of course, do not require proof of a conspiracy. Each can be used, when appropriate, against unilateral conduct. And in the Hackman case, neither claim appears to be subject to arbitration.
I know it was issued just in the last few hours, and I've only read through it once, but I think that Judge Bucklo's opinion is a must read for any and all brokers/agents who may be contemplating legal action against "difficult" brokers/agents in their area. While bylaws will vary from association to association, and the common law will vary from state to state (here Judge Bucklo looked to Illinois law when considering plaintiffs' tort claims), the applicability of Bell Atlantic, and the potential utilization of tort claims against actionable, unilateral conduct, should be considered by all potential plaintiffs, regardless of jurisdiction.
Friday, August 24, 2007
Online Liability Blog
This post is admittedly a little off topic. No antitrust/competition angle here, but there is a real estate connection. Perhaps you recall the forsalebyowner case and/or the pending zerobrokerfees and kcpremierapts cases, each implicating licensing laws and the First Amendment? Or maybe you read about the Roommate.com or craigslist decisions involving the Fair Housing Act and potential statutory immunity? Yes? No? Either way, I'll keep it short.
I recently created a new blog that focuses on online liability issues, i.e., the circumstances under which a website (and/or other Internet-related business) may be liable for certain online conduct. I thought I'd share a link to it here, and invite you to fire off any comments you might have. Soon I hope to have a static "Real Estate" page on the blog that highlights online liability issues relating to real estate-related websites. Stay tuned.
Thanks.
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