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Four Cases Selected for NAR Legal Funding Support

Approved by the Board of Directors at the 2017 REALTORS® Legislative Meetings & Trade Expo

May 24, 2017

Below are summaries of the case funding recommendations made by NAR's Legal Action Committee, which were subsequently approved by the Board of Directors at the 2017 REALTORS® Legislative Meetings and Trade Expo, held in Washington, D.C. during May 2017.

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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

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