Category Archives: Politics & Regulation

Reading the Union Position on Monell v. Boston Pads

One of the law firms who filed the union-side amicus brief

One of the law firms who filed the union-side amicus brief

As my readers know, the recent Massachusetts Supreme Judicial Court (“SJC”) handed down its ruling in Monell v. Boston Pads. I wrote about that case and cautioned against irrational exuberance from the results, because the results were not exactly a huge victory for the real estate industry’s position.

Thing is, Bararsani v. Coldwell Banker, the ginormous California case that everyone has been watching has yet to be decided, and one rightly wonders what the impact (if any) of Monell v. Boston Pads might be to that case. There is no controlling authority, since SJC is the state supreme court, not the Federal one, but there may be persuasive authority to the judge in Bararsani. I touched on that in my previous post.

Now one of the more interesting subplots of the Bararsani case — and all real estate independent contractor cases — is the involvement of the labor unions. One piece of scuttlebutt I heard from the folks at CAR (California Assoc. of REALTORS) is that CAR approached the legislature to make it clear that real estate agents were not to be considered as employees… and the legislature refused, because the unions didn’t want that. (What that says about REALTOR political power is a subject for another post, another day.)

So… I thought it might be interesting to try to understand what the argument of the labor unions are. Thankfully, the unions — by way of an amicus brief — made its arguments clear to the court in Monell. I understand this is probably of zero interest to those readers who aren’t law junkies or aren’t involved in strategic planning for the Bararsani litigation, but… what the hell. I think it’s interesting.

Notorious ROB — where I read law briefs so you don’t have to. :)

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Transparency in Bidding… A Question That May or May Not Be Hypothetical

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Let me tell you a story. It may be fiction, it may be nonfiction. It’s about a man, who may or may not be a Ivy League-educated lawyer who is the chief counsel for a Democrat Congresswoman with enormous power in the House. Let’s say his name is Dave. He may or may not be a law school friend of mine from NYU, who has now been a DC insider for a couple of decades. All kinds of names and facts and circumstances may have been changed to protect the innocent.

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Monell v. Boston Pads Ruling: Hold Off on the Jubilation

Earlier today, the Massachusetts Supreme Court handed down its decision on Monell v. Boston Pads, one of two independent contractor status lawsuits that the real estate industry has been watching with baited breath. (The other one, still being litigated, is Bararsani v. Coldwell Banker in California.)

Bottomline: the brokerages and the REALTOR Associations that backed them won. I can almost hear the champagne corks popping from my house in Houston. Here’s the press release from MAR (Massachusetts Association of REALTORS):

This decision is a win for consumers and the entire real estate industry because real estate brokers and salespersons will still be able to work as independent contractors. Affiliating as an independent contractor  has been the backbone of the profession for more than 100 years.

“We are pleased that the Massachusetts Supreme Judicial Court affirmed the pro-consumer choice by real estate professionals to affiliate as either independent contractors or employees.” said 2015 MAR President Corinne Fitzgerald, broker-owner of FITZGERALD Real Estate in Greenfield. “This relationship has worked for generations and it is what consumers have come to expect regarding agent entrepreneurship and availability. We’re glad the choice will continue.”

Inman News headline on the story looks like this:

Appeals_court_upholds_centurylong_real_estate_broker_structure_in_epic_win_for_industry_and_consumers___Inman

And on Facebook and elsewhere, the celebrations continue.

First of all, I’m glad the case came out the way it did, and I can get behind the whole “this is a win for consumers” angle on the decision.

But might I suggest tapping the brakes on this joyride a touch? I’ve read the actual opinion itself, and while this is not legal advice, it is advice to consult your attorney when looking at how you’ve structured your brokerage operations.

This ruling is not an epic win. The ruling does not confirm that real estate agents are considered independent contractors. In fact, it is not a clear-cut victory for the brokerages at all. As Mos Def says, “Relax, pump the brakes. You’re speeding, money.”

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2015 NAR Midyear Legislative Meetings: Quick Takes, Without Much Thought

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I have a feeling we’re going to be talking about a whole variety of things that went down at NAR Legislative Meetings & Trade Expo (aka, “Midyear”) this year for months and years to come. It’s been a great week, but rough on the sleep schedule, so these are not exactly deeply-thought-out opinions here. It’s more of a “flash impression” of where my head’s at right now, while I hurtle through the air at 350MPH.

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Oh, California… Duty to Monitor Crazies?

Santa Barbara Mom Lawsuit

I ran across this disturbing story on the Interwebz related to the horrible killings in Santa Barbara last year:

A tearful mother of a college student slain in a rampage outside Santa Barbara last year said Tuesday that she and the parents of the first victims sued the county sheriff and other parties to prevent future tragedies.

You can’t help but feel sorrow for Kelly Wang and the families of other victims in that tragedy. There’s no question that the killer, Elliot Rodger, was mentally unstable and dangerous.

But… the lawsuit contends that landlords — and by extension, their property managers — have a duty to screen for disturbed individuals, and I have to say I’m wondering about that.

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