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Legal Action Case Support “Scorecard”

November, 2012

Fair Housing

Case Status

Holley – owner’s personal liability for agent’s violation (CA 11/01); on remand claims reinstated against broker

Won

Satas -   lawfulness of municipalities (IL 11/99); denial of certificate of occupancy

Won

Ileka -    broker liability for seller’s discrimination (IL 5,11/99)

Won

West Towns - occupancy restrictions, presale inspection (IL, 5/02)

Case never filed, ordinance revised by city          

 

Arbitration

Case Status

Stacey – enforcement when court allows evidence (AZ, 5/2000)

Won

Crawford – buyers agent’s duty to arbitrate (MA, 5/1999)

Won

Everage – duty of corporation to arbitrate (KY, 2/1999)

Lost

Carey  - enforceability of award (NH, 11/98)       

Won

Michigan Group - enforceability of award (MI)

Won

New Orleans - enforceability of award (LA)

Won

P&M Equities - enforceability of award (LA)

Won

Giliad – duty to participate in arbitration (OR)

Won

West/Conway - enforceability of award (AR)

Won

Leek  - duty to make escrow deposit (AZ)

Won

Stark County – enforcement of award (OH)

Won

Lane v. Urgitus (CO)

Won

Island Realty v. Van Dyk (NJ) (5/07)        

Won

Island Realty v. Caton and Broome (NJ)(5/09)

Won

Droscha v. Sheppard -  enforcement of award (IN) (11/09)

Won

Tanner (OH)  - enforcement of award (OH) (11/09)

Won

Landman Realty v. Weichert, Inc. (NY 5/2012) – duty to arbitrate dispute

Lost

 

Property Rights

Case Status

Kelo v. New London (CT 11/2004) – eminent domain for economic development

Lost

Condemnation of Property in Lower Windsor Township - eminent domain (PA,11/2004)

Lost

San Remo Hotel L.P. v. City and County of San Francisco Federal - takings claim after state compensation claim (CA, 11/2004)

Lost

San Francisco Baykeeper v. Cargill (CA, 2005) - CWA wetlands jurisdiction

Won

Kottschade v. City of Rochester – (MN) (2004) - taking claim w/o state compensation litigation

Lost

Mass DTE – required telecommunication access (MA, 11/2001)  

Won

Mass AOR – State’s demand for easement (MA 11/2001)

Won (settled)

Cwynar – required rental continuation (CA 11/2000)

Won

Shields – Endangered Species Act/interstate commerce (TX 5/2000)

Lost

Common Sense Salmon Recovery – ESA salmon listing (WA 5/1999)

Lost

Galland – rent control of mobile home pads (CA 5/2001)

Lost

U. S. v. Deaton – Federal wetlands jurisdiction (MD 5/1997)

Lost

Wetlands amicus project
U.S. v. Needham, U.S. v. Newdunn, U.S. v. Rapanos

1 Lost
2 Won
1 in Sup. Ct.

Rathkamp – challenge to FL vacation rental restrictions (FL, 11/98)

Lost

Del Monte Dunes - right to a jury to consider taking claim (CA, 5/98)

Won

National Mining Congress – validity of regulation of excavation of wetlands under Clean Water Act (DC)

Won

Leslie Salt – Clean Water Act wetlands jurisdiction over isolated wetlands (CA)

Lost

Sweet Home – scope of Endangered Species Act (OR)

Lost

Hoffman Homes – Clean Water Act jurisdiction over wetlands used by migratory birds

Lost

Dolan – compelled dedication of property unconstitutional taking (CA)

Won

Loveladies Harbor – denial of wetlands permit requiring compensation as a taking (NJ)

Won

Kottschade v. City of Rochester – takings plaintiff’s right to sue in federal court for inverse condemnation without first bringing suit in state court (MN)

Lost

Palazzolo v. Rhode Island  - taking of property by regulation – when regulation enacted before acquisition (RI, 5/2004)

Lost - compensation denied

Helena Building Industry Association v. Lewis and Clark County – onerous water flow requirements in subdivision regulations (MT, 5/2005)

Won

Christison v. Board of Commissioners of Lewis and Clark County (MT) - Roadway improvement exaction as a condition of subdivision approval.

Won

Tal Slann v. Clemson (SC,11/09) – enforcement of zoning limit of three unrelated people in house.

Won

Sackett v. U.S. (ID 5/2012) Challenge to wetlands determination without seeking a development permit or violation

Won

Waterkeeper Alliance, Inc.  v. Hudson Farm and Perdue (MD 5/2012) - Downstream CWA violation allegedly caused by pollutants from poultry farm.

Pending

National Wildlife Federation v. Federal Emergency Management Agency (WA 5/2012) - FEMA NFIP building restrictions allegedly in violation of ESA.

Pending

 

Antisolicitation

Case Status

Anderson – constitutionality of New York anti-solicitation statute (NY 11/1998, 5/2000)

Lost

Pearson (IL ) – constitutionality of  Illinois anti-solicitation statute

Won

 

Sign Restrictions/Ordinances

Case Status

Blazing Bagels and Ballen v. City of Redmond (WA, 11/2004)

Won

Massapequa Park (NY, 5/2001)

Lost

Pinehurst I (NC, 5/1999)

Won

Pinehurst II (NC, 11/2000)

Settled

Dolton (IL, 5/2000)

Won

Philadelphia (PA, 5/2000)

Won

Dolton (IL, 5/00)

Won

Crestwood (IL)

Won

Westchester (IL)

Won

Lynwood (IL)

Won

 

Antitrust

Case Status

Reifert v. Realtors Association of South Central Wisconsin

Won

MLS association membership requirement (WI, 5/2005) - Carlin and Jackson v. TReND - MLS access membership requirement (PA, 5/2003)

Settled

Freeman II – MLS price fixing, boycott, tying (CA, 11/1997, 1999, 2000, 2003)

Lost

Freeman III – Antitrust conspiracy (CA, 5/2003)

Won

Custom Real Estate – MLS access by non-members (NY, 5/2001)

Settled

Thompson – MLS access by non-members (GA, 1991)

Lost

Ferbrache – MLS access by non-members (CO)

Settled

Venture Resources – MLS access by non-members (NJ)

Won

Worrell – unlawful conspiracy in creating “Homes Magazine” (VA)

Won

Buyer’s Corner v. Northern Kentucky AOR - association membership as a prerequisite to MLS access (KY, 5/2004)

Won

In the Matter of Realcomp II (MI, 2007-08)

Lost

Allan v. Realcomp II, and 7 Association Boards (MI 11/2010)

Lost motion to Whether Realcomp II and its shareholder associations are liable

Dismiss, pending for damages to consumers in connection with REALCOMP’s their allegedly unlawful website policies.

Hyland v. Homeservices, et al (KY, 5/2011) - alleged price fixing

Won

 

Broker Liability

Case Status

Buffalo Niagara Assoc. of REALTORS® v. Wheatfield (NY, 11/ 2004) - local ordinance requiring disclosures

Won (Settled favorably)

McLaughlin – “negligent recommending” (CT, 11/2001)

Settled

Lombardo – buyer agent liability for failing to disclose buyer’s financial capability (AZ, 11/1999)

Lost

Caterina – failure to disclose “haunting” (HI, 5/1999)

Settled

Robiskie v. Smythe, Cramer Co  - alleged failure to disclose soils report (OH, 5/2006)

Settled

McKonkie, et al v. Rice, et al. (TX, 11/09) - Alleged liability of broker for financial capability for buyers.

Won

Tucker Real Estate v. Wesley Hills (NY, 11/09) - Declaratory judgment that brokers are not responsible for code violations in housing for sale.

Won

 

MLS Copyright

Case Status

Ft. Lauderdale AOR – MLS copyright infringement (FL, 5,11/1999)

Won

Houston AOR – copyrightability of MLS database (TX)

Won

Montgomery County - copyrightability of MLS database (MD)

Won

San Fernando Valley - copyrightability of MLS database (CA)

Won

U.S. v. Martignon (NY)(5/2007)

Won

 

RESPA

Case Status

Freeman v. Quicken Loans (11/2011 U.S. Supreme Court) - Whether a fee paid to a settlement service provider must be split with anther provider for a violation of RESPA 8(b) to occur.

Won

Cantlin & Hong v. Howard Hanna Co., et al. - Noall & Miller v. Howard Hanna Co., et al.  (OH, 5/10) Challenge under RESPA 8(b) to broker administrative fees.

Won

Busby v. JRHBW Realty and RealtySouth (AL 11/11) - Lawfulness of administrative fees under RESPA Section 8(b)

Won

Augenstein v. Coldwell Banker Real Estate LLC, NRT LLC, and NRT Columbus LLC d/b/a Coldwell Banker King Thompson (OH/11/10) Challenge under RESPA 8(b) to broker administrative fee.

Won

Minter, et al v. Wells Fargo Bank, N.A. et al. Petry v. Wells Fargo Bank, N.A. et al. (MD, 5/10) – Affiliated business arrangements as unlawful “sham” joint ventures.

Pending

Edwards v. First American. Article III federal jurisdiction for a claim for damages for an alleged violation of  Section 8(b) of RESPA where the plaintiff concedes no financial injury.

Dismissed

Carter v. Welles-Bowen Realty, Inc. – Whether HUD Af BA “sham” exception “guidelines” as unconstitutionally vague.

Pending

Shomer v. Alliance LLC (PA 11/11) - RESPA-like claim under PA UDTPA

Withdrawn

 

Others

Case Status

Real Estate Alliance v. Sarkisian - infringement of patent  by MLS Software (PA, 11/2005)

Pending

New Hampshire Association of REALTORS® v. ISoldMyHouse.com – license requirement for FSBO website (NH, 11/2004)

Won

Commission Express National v. Realty One – payment of commission advances to unlicensed entities (OH, 11/2004)

Won

Staten Island – trademark, tradename infringement (NY, 11/2001)

Won

Regent Realty – failure to pay interest on pet deposit invoking penalties for withholding security deposit (IL, 5/2000)

Lost

Incline Village – application of NV transient lodging tax (NV, 5/2001)

Won

Montana Chamber of Commerce – constitutionality of MT election law (MT, 5/1999)

Won

Sweet – Federal lead based paint regulations effective date (NY, 5/2000)

Won

Springfield, MA BOR – IRS independent contractor status of instructors (MA, 5/2000)

Won

Kentucky AOR – required use of attorneys for closings (KY, 11/2000)

Won

Sherlock Homes, Reddy Land – bankruptcy inclusion of listings in value of estate (NY, 11/2000)

Won

ASAE v. IRS – challenge to Internal Revenue Code “lobby tax” provisions (DC, 5/94)

Lost

Colorado Republicans – challenge to contribution limits (CO, 5/97)

Won

East Orange County AOR – challenge to Board tax exempt status because of MLS operations

Won

Glendale AOR – challenge to CA sales tax of MLS user fees

Won

Rhode Island lead-based paint litigation (RI, 5/2003)

Lost

Grau v. Ruhl & Ruhl (IA, 5/2004) – federal lead based paint disclosures

Settled

OneBeacon v. Nothnagle (NY, 11/2004) – independent contractors as employees for general liability purposes

Won

Heal v. Zion Holding Co. (UT, 2004) – interpretation of protection period clause in listing agreement

Won

Wachovia v. Watters – preemption of state law by OCC regulations as applied to mortgage subsidiary of national bank (MI, 6/2004)

Lost

Lincoln Property Company v. Roche – diversity jurisdiction (VA, 2005)

Won

U.S. v. Martignon – authority of Congress to enact database protection legislation  (NY, 2005)

Won

Swift v. James - liability of broker for sexual harassment by independent contractor sales agent (NV, 11/2005)

Lost

Callies v. O’Neal, et al (ID) – commission entitlement

Won

VT Stormwater NPDES Petition – federal NPDES permit requirements (VT, 5/2005)

Won

REALTOR®  Ass’n of West/South Suburban Chicagoland v. Village of Dolton – pre-sale inspection ordinance  (IL, 5/2006)

Won

HER, Inc. v. Re/Max First Choice LLC; HER Real Living, Inc. v. Thomas James, et al. (OH) (11/2006)

Won

REALTOR® Association of West/South Suburban Chicagoland v. Calumet City (IL)  (11/2006) – challenge to point of sale, “deconversion” ordinances

Lost

Weber, Hodges & Godwin v. Cook (NC)(5/2007) – status of  listing agreement

Won

WRTL v. FEC (WI)(5/2007) – constitutionality of limitations on corporate public issues advocacy communications that identify federal candidates

Won

Data Tree v. Romaine (NY)(5/2007) – availability of data under NY FOIA statute

Won

Western Upstate Carolina Association of Realtors® v. Womack (SC) (11/2008) - ethics sanction enforcement.

Won

Gidcumb v. Century 21 Award and California Association of Realtors® - liability for use of standard CAR forms

Won

Tennessee Scrap Recyclers Association v. Breseden, et al (TN) (11/2008) -  Validity of “tag and hold” regulation of scrap metal dealers

Won

Clearinghouse and OCC v. Cuomo (US Sup Ct) (11/2008; 5/2009)

Won

Classic Homes Realty v. E.J.G. Properties (NJ, 5/09) (No commission payable to broker where contract contingencies expired and closing occurred after the end of the listing agreement protection period.)

Lost

Proctor & Rulien v. Portland (OR, 11/09) Challenge to application of City “Business License Law” to real estate professionals.

Won

McCully v. Baccaro Ranch (NE, 11/09) Payment of real estate commission on 1031 exchange.

Won

Homebuilders Association of South Carolina v. School District No. 2   (SC)(11/2010) (lawfulness of impact fee assessment.)

Lost, appeal pending

Counselors of Real Estate v. PerryCRE (11/2011) (challenge to broker’s  use of “CRE” in domain name)

Won

Raymond James Financial Services, Inc. v. Barbara J. Phillips, et.al. (FL 5/2012) - Enforcement of securities arbitration duty

Pending

Metropolitan Regional Information Services, Inc. v. American Home Realty Network, Inc. and Jonathan J. Cardella (MD 5/2012) - Copyright infringement of MLS database.

Pending