Today, the Department of Justice Antitrust Division announced the simultaneous commencement and settlement of antitrust and anticompetitive practice complaints against the National Association of Realtors. 

In its press release, found HERE, the DOJ identified four areas of anticompetitive practice which they allege "result[ed] in decreased competition among real estate brokers":

1. Prohibiting local MLSs from disclosing to prospective buyers the amount of the commission earned by buyer brokers;
2. Permitting buyer brokers to misrepresent to buyers that their buyer brokerage services are free;
3. Enabling buyer brokers to filter MLS listings by the amount of buyer broker commission offered; and
4. Preventing non-NAR brokers from accessing key lockboxes for homes listed on MLS.
   
   

The settlement will directly address these four issues in order to "enhance competition in the real estate market, resulting in more choice and better service for consumers." The proposed settlement can be found HERE and will be open for public comment once posted to the federal register. 

NAR has routinely found itself under antitrust scrutiny due to its overwhelmingly popular MLS platforms, which often are the only multiple listing platforms available in local markets. Three recent federal lawsuits filed against NAR have focused on NAR's policies regarding compensation for buyer brokers, alleging that buyer brokers are unable to compete on price due to the requirement that all listings on MLS offer some form of cooperating brokerage commission. It is alleged that these anticompetitive practices have driven up the overall cost of brokerage services for consumers by eliminating competition on the buyer broker side of the market. 

The announcement by the Department of Justice was silent with regard to whether any additional investigations into NAR were ongoing. 

Starting on December 11, 2020 there will be time limits to remedy any determinations of building code violations in NYS per new law. 

The Real property Actions and Proceedings Law (RPAPL) 777(a) has been amended to ensure that no code violations or dangerous conditions remain outstanding for "more than sixty days from the date of the order of the court" if the owner (or mortgagee or liener) enters into a consent order to remedy the issue upon the petition being granted against such owner. 

We expect that this sixty day period will be applied by the various town / city / village attorneys in plea agreements as well. 

Now, there is a rush to fix unless good cause for delay can be shown.

Effective November 10, 2020, NYS strengthened its laws against lawsuits that are brought and intended to chill free speech, called Strategic Lawsuits Against Public Participation ("SLAPP suits"). 

NYS' prior anti-SLAPP / free speech law had been limited to protecting speech concerning "controversies over a public application or permit, usually in a real estate development situation." 

Now, the anti-SLAPP law deals with "anything other than a 'purely private matter.'" Additionally, the law now requires courts to provide costs and attorney's fees if a lawsuit against public petition and participation was initiated in bad faith to chill speech. 

The new laws are Civil Rights Law 70-a, which deals with the costs and attorney's fees, and Civil Rights Law 76-a, which expands the types of speech that is protected by the anti-SLAPP law. Specifically, Civil Rights Law 76-a now permits a suit concerning "[a]ny communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. [a]ny other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition."

To read the full bill, click here. 

Are you ever confused about who the broker is when you search for property online? Thankfully, the NYS advertising regulations were just amended to adequately disclose to the consumer who the exclusive agent is. The specific updates are included in Andrew Lieb's latest article published in The Suffolk Lawyer, law journal. CLICK HERE FOR THE FULL ARTICLE. 

Get your anti-discrimination guidance starting on December 10, 2020 on HUD's new searchable website, which will also give guidance on lending, foreclosures, and much more. 

Currently, guidance is available here.  

Starting on December 10, 2020, HUD will make available "a single, searchable, indexed website," and make guidance subject to a 30 day public comment period with a procedure for the public to petition to modify or withdraw guidance per its Interim Final Rule available at 85 FR 71537.

HUD guidance documents "are statements of general applicability and future effect that set forth policy on statutory, regulatory, or technical issues or interpret statute or regulation." In plain English, guidance advises industry as to HUD's interpretation of laws as applicable to described activity. As such, industry is better able to function, in a regulated environment, when industry can request direction on gray areas of law prior to making investment or taking action in that area. 

As background, "[o]n October 9, 2019 (84 FR 55235), the President issued E.O. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents," which "requires that each Federal agency take certain actions to ensure the transparent availability and use of guidance documents." This Interim Final Rule is made in satisfaction of the E.O.

Effective October 26, 2020, HUD implemented a new disparate impact fair housing standard.

Disparate impact discrimination occurs when housing practices have an unjustified discriminatory effect even though they were not motivated by a discriminatory intent. 

The new standard exists at 24 CFR 100.500 and it makes a claim of disparate impact discrimination far harder to bring and even harder to prove as compared to the prior HUD standard.

Previously, the regulation did not contain an express pleading standard and instead, only required the plaintiff to prove "that a challenged practice caused or predictably will cause a discriminatory effect." 

Now a plaintiff must "sufficiently plead facts to support each of the following elements: (1) That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law; (2) That the challenged policy or practice has a disproportionately adverse effect on members of a protected class; (3) That there is a robust causal link between the challenged policy or practice and the adverse effect on members of a protected class, meaning that the specific policy or practice is the direct cause of the discriminatory effect; (4) That the alleged disparity caused by the policy or practice is significant; and (5) That there is a direct relation between the injury asserted and the injurious conduct alleged."

With respect to the 3rd element, that is a very heavy burden for a plaintiff to satisfy at the pleading stage of litigation because the requisite evidence is often unavailable until the parties have engaged in the discovery process. 

Moreover, while the prior regulation provided that a defendant would then have to rebut the claim by "proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests[,]" a defendant now can just rebut the first element "by producing evidence showing that the challenged policy or practice advances a valid interest (or interests) and is therefore not arbitrary, artificial, and unnecessary." Changing the term from a "substantial" interest to "a valid interest" results in the defendant's burden seemingly being far lower.

Moreover, under the new standard, once the defendant rebuts the first element, "the plaintiff must prove by the preponderance of the evidence either that the interest (or interests) advanced by the defendant are not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified interest (or interests) in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant." Previously, this was the defendant's burden. 

Regardless, there are now also 3 express defenses available, including that "(i) The policy or practice is intended to predict an occurrence of an outcome, the prediction represents a valid interest, and the outcome predicted by the policy or practice does not or would not have a disparate impact on protected classes compared to similarly situated individuals not part of the protected class, with respect to the allegations under paragraph (b). This is not an adequate defense, however, if the plaintiff demonstrates that an alternative, less discriminatory policy or practice would result in the same outcome of the policy or practice, without imposing materially greater costs on, or creating other material burdens for the defendant. (ii) The plaintiff has failed to establish that a policy or practice has a discriminatory effect under paragraph (c) of this section. (iii) The defendant’s policy or practice is reasonably necessary to comply with a third party requirement, such as a: (A) Federal, state, or local law; (B) Binding or controlling court, arbitral, administrative order or opinion; or (C) Binding or controlling regulatory, administrative, or government guidance or requirement."

Housing participants should be particularly interested in the third available defense in the form of a controlling administrative opinion or binding regulatory guidance. It is strenuously suggested that every housing industry participant seeks such opinion or guidance as a necessary incident of any business plan covering a new product or service. To fail to do so is just reckless in a world where such a defense exists. 

That being said, it is noted that this regulation only pertains to a federal housing discrimination claim and states and locales may offer increased protections to their citizens. So, these other laws must also be analyzed for housing participants to the extent that they afford disparate impact claims (e.g., NYC Admin. Code). 

There are new laws about debt collecting starting on October 30, 2021. 

Specifically, amendments to Regulation F (12 CFR Part 1006), which implements the Fair Debt Collection Practices Act (FDCPA), were published on October 30, 2020 in the Federal Register and when these amendments become effective, on October 30, 2021, the entire debt collection industry in the United States will be forever changed.

These changes mainly concern updating the FDCPA with respect to its application to modern forms of communication via technology, inclusive of a safe harbor for communications via text or email. However, the final rule is 653 pages so it's far more extensive than that simplistic understanding and should be reviewed, at length, by any industry participant. 

To navigate the rule, it's recommended that you utilize the table of contents. The main sections of the amendment, which should be studied, are as follows:

1. Communications in Connection with Debt Collection;
2. Acquisition of Location Information;
3. Harassing, Oppressive, or Abusive Conduct;
4. False, Deceptive, or Misleading Representations;
5. Unfair or Unconscionable Means;
6. Other Prohibited Practices;
7. Disputes and Requests for Original-Creditor Information;
8. Sending Required Disclosures; and 
9. Record Retention

As background, the FDCPA was enacted in 1977 because "[t]here [was] abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors" whereas these practices "contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy." According to the Consumer Financial Protection Bureau "[d]ebt collection is estimated to be a $12.7 billion-dollar industry employing nearly 123,000 people across approximately 7,800 collection agencies in the United States." 

Make no mistake, these regulations are particularly important because "[c]onsumers... file thousands of private actions each year against debt collectors who allegedly have violated the FDCPA." Available damages in these lawsuits include up to $1,000 plus attorneys' fees for individuals and up to $500,000 or 1% of the net worth of the debt collector for class actions (15 USC 1692k). As a result, debt collectors who are unfamiliar with these amended rules, when they become effective, are in for a world of hurt. 

By the way, there is going to be another rule on this topic in the nearterm and it will address the required disclosures when debt collectors are pursuing time-barred debts (A/K/A, outside the applicable statute of limitations for suit). Stay tuned. 

On October 29, 2020, the NYC City Council approved a new law that requires the Department of Social Services to provide a letter to applicants about their rights to be free from source of income discrimination. 

This is yet another reminder that landlords and brokers need to understand that source of income discrimination is illegal and can subject them to large fines / judgments, loss of licensing, and terrible public relations issues. 

Landlords and brokers should review the NYC Commission on Human Right's Best Practices for Licensed Salespersons and Brokers to Avoid Source of Income Discrimination and revise their applications, leases, policy manuals, and trainings to reflect this new expected law. 

For help, contact Lieb Compliance. 

The new law adds new §21-141.1 to the Administrative Code as follows:

Information regarding lawful source of income discrimination. a. Definitions. For purposes of this section, the following terms have the following meanings: CityFHEPS. The term “CityFHEPS” means the city fighting homelessness and eviction prevention supplement program established pursuant to chapter 10 of title 68 of the rules of the city of New York or any successor program. Covered entity. The term “covered entity” means the owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be constructed, or an interest therein, or any agent or employee thereof, who is subject to the prohibition on discrimination based on lawful source of discrimination pursuant to subdivision 5 of  section 8-107. Lawful source of income. The term “lawful source of income” has the meaning as set forth in section 8-102. Shopping letter. The term “shopping letter” means a letter issued by the department to assist a household in its housing search that identifies the household as potentially eligible for CityFHEPS and lists the maximum rent. b. The department shall provide written notice regarding the protections of section 8-107 related to lawful source of income at the time that a CityFHEPS applicant receives a shopping letter. Such notice shall be developed by the New York city commission on human rights pursuant to paragraph p of subdivision 5 of section 8-107 in consultation with the department.

It also amends §8-107(5) by adding new paragraph (p) as follows:

For purposes of this paragraph, the term “CityFHEPS” means the city fighting homelessness and eviction prevention supplement program established pursuant to chapter 10 of title 68 of the rules of the city of New York or any successor program. The commission shall develop and disseminate a written notice of protections of this subdivision related to lawful source of income. The notice shall be made available to the department of social services for use in accordance with section 21-141.1. The notice shall include, at a minimum, the following information:

1. Examples of different forms of lawful source of income; 

2. A description of covered entities required not to discriminate on the basis of lawful sources of income;

3. Examples of actions that may indicate discrimination based on lawful source of income in violation of title 8, such as refusing to accept lawful source of income for rent payment, publishing any type of advertisement that indicates a refusal to accept any lawful source of income, and refusing or delaying repairs because a person uses any lawful source of income for rent payment, publishing any type of advertisement that indicates a refusal to accept any lawful source of income,  and any additional actions landlords or brokers use to unlawfully discriminate against a person on the basis of their using any lawful source of income;

4. A statement that it is illegal for covered entities to refuse to accept a CityFHEPS subsidy for payment of rent or a security deposit voucher in buildings subject to the prohibition on discrimination on the basis of lawful source of income pursuant to section 8-107;

5. A statement that it is illegal for covered entities to request additional payments for rent, a security deposit or broker’s fee because an individual receives rental assistance;

6. A statement that it is illegal for covered entities to publish any type of advertisement that indicates a refusal to accept rental assistance;

7. A statement that it is illegal for landlords to refuse or delay making repairs to an individual’s unit because such individual pays rent with a CityFHEPS subsidy;

8. A statement that an individual has the right to be free from discriminatory, harassing or threatening behavior or comments based on such individual’s receipt of or application for CityFHEPS;

9. Directions on how to contact the commission, the department of social services’ source of income discrimination unit, the state division of human rights and the office of the state attorney general;

10. A description of potential remedies available at the commission if a covered entity is found to have engaged in discrimination based on lawful source of income; and

11. Any other information deemed appropriate by the commissioner and the commission in consultation with the department of social services.

Upon the Mayor's signature, the law will take effect 180 days thereafter. 

Creating and issuing clear policies and enforcing such policies will make managing remote employees less onerous and less costly. Mordy Yankovich, Esq. provides policy advice in The Suffolk Lawyer.

CLICK HERE to review the full article. 

On October 14, 2020, the EEOC issued a final rule, 29 CFR 1601 & 1626, for charges of employment discrimination. The key to this rule is to clarify that just because EEOC makes a "no cause" determination, that doesn't mean there is no discrimination and a victim can still hire an attorney and pursue a private lawsuit against their employer. While this change is minor in law, it's very important to clarify victim's rights.

Specifically, the rule now includes a notice to the victim of their right to file a lawsuit (within 90 days of receipt of the determination) and clarifies that a "no cause" determination doesn't mean that the "claims have no merit." Now, the Dismissal and Notice of Rights will read as follows:

The EEOC issues the following determination: The EEOC will not proceed further with
its investigation, and makes no determination about whether further investigation would
establish violations of the statute. This does not mean the claims have no merit. This
determination does not certify that the respondent is in compliance with the statutes. The
EEOC makes no finding as to the merits of any other issues that might be construed as
having been raised by this charge.

• Proceedings Commenced Prior to March 17, 2020:
• The court must conduct a status or settlement conference wherein the court reviews the procedural history of the case, any effect of the COVID-19 pandemic, if any, upon the parties, any other relief or protection available to the tenant, among others. Thereafter, the court may take further steps it deems appropriate, including allowing the matter to proceed and allowing the enforcement of warrants of eviction. 

• Proceedings Commenced After March 17, 2020: 
• All residential eviction matters (nonpayment and holdover) may proceed subject to: 
• Current or future federal and state laws affecting evictions; 
• For evictions based on nonpayment of rent: 
• FHA, Fannie Mae, Freddie Mac borrowers are prohibited from starting nonpayment evictions and are encouraged to seek forbearance and other options with their lenders; 
• The CDC also halts evictions for nonpayment of rent until December 31, 2020. You can read more about it and the penalties HERE. 
• The individual court’s scheduling requirements as affected by health and safety concerns due to COVID-19. 

• Nonpayment proceedings are subject to the Tenant Safe Harbor Act: 

• Courts are prohibited from issuing a warrant of eviction or judgment of possession against a residential tenant or other lawful occupant who suffered a financial hardship during the COVID-19 period and is being evicted for non-payment of rent due during such period. 
• Currently, the COVID-19 period runs from March 7, 2020 to January 1, 2021, as extended by Executive Order 202.66 and subject to any further extensions. This means that courts will only issue money judgments (no warrants of evictions and judgments of possession) on eviction proceedings based on nonpayment of rent due during the COVID-19 period. 

• Proceedings Commenced Prior to March 17, 2020:
• May proceed in the normal course subject to:
1. Any existing prohibition on the prosecution or enforcement of evictions (as of this writing, there are none); and
2. The suspension of statutory deadlines until November 3, 2020 per Executive Order 202.67.

• Proceedings Commenced After March 17, 2020:
• Eviction proceedings for nonpayment of rent are prohibited until October 20, 2020 per Executive Order 202.64 and subject to any further extensions.
• Holdover eviction proceedings may be commenced but remain suspended until further order of the court per Administrative Order 160A/20. This means the petition may be filed and the tenants may file an answer, but the proceedings shall remain suspended. However, if all parties are represented by counsel, the matter may be eligible for calendaring virtual settlement conferences with the court.

• All proceedings will be conducted remotely whenever appropriate.
• Mediation and other alternative dispute resolution methods are encouraged where either all parties are represented by counsel; or all parties are unrepresented by counsel.
• All petitions must include the Notice to Respondent Tenant.
• Filing and service may be done through NYSCEF, if available and by mail, if not.

• Employers must report in-patient hospitalization within 24 hours of the work-related incident. A work-related incident means that the employee was exposed to COVID-19 in the workplace.
• The 24-hour reporting period starts when the employer:
• learns that an employee was in-patient hospitalized within 24 hours of a work-related incident; and
• determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19.
• The above rules only apply to reporting but not to record keeping. Employers must still record work-related confirmed COVID-19 cases regardless of whether an employee was hospitalized.

• Employers must report them within 30 days of the work-related incident or the employee’s exposure to COVID-19 in the workplace.
• The employer must report the fatality to OSHA within 8 hours of knowing or determining:
• that the employee died within 30 days of exposure to COVID-19 in the workplace; AND
• that the cause of the death was a work-related case of COVID-19.
• Similar to in-patient hospitalization, the above limitations only apply to reporting and not to record-keeping.

According to the EEOC, they pay $174,000 and attorneys' fees on cases that go to trial are between $195,000-$279,000.

You should get your training to prevent discrimination at your workplace today - sexualharassmenttrainingny.com or call 646.216.8038

According to the EEOC, they pay $45,466 to settle cases in conciliation before lawsuit (it only goes up from there).

On October 9, 2020, the EEOC submitted a proposed rule in the Federal Register to change the conciliation procedures in an employment discrimination lawsuit. 

Basically, a conciliation is a required mediation of the discrimination case undertaken after EEOC finds reasonable cause for a charge, but before a lawsuit is filed. Historically, the process has been a mystery for employers as EEOC kept the steps, charges, and process secret. This mystery has resulted in approximately 1/3 of employers refusing to participate in conciliation even though the process is confidential and can't constitute evidence against such employer (unless otherwise agreed upon in writing).

The proposed rule requires that "the Commission will provide to the respondent, if it has not already done so:

(1) A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently to identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;

(2) a summary of the Commission's legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination had occurred;

(3) the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and

(4) identification of a systemic, class, or pattern or practice designation. The Commission also proposes to specify that the respondent participating in conciliation will have at least 14 calendar days to respond to the initial conciliation proposal from the Commission."

These rules are terrific and will result in increased settlements because an employer now has the ability to ascertain risk and then, strategically engage in meaningful settlement discussions in the conciliation process rather than blindly throwing money at a situation to make it go away. 

We encourage you to comment on the proposed rule should you have any suggestions to enhance its effectiveness by writing your thoughts, up until November 9, 2020, and sending them by mail, with reference to RIN Number 3046-AB19, to Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.

On September 28, 2020, Mayor De Blasio signed a bill into law amending the New York City Paid Sick and Safe Leave law to make it largely consistent with New York State's new Paid Sick Leave law. 

The law amends the New York City Paid Sick and Safe Leave law as follows:

Amount of Sick Leave: 

• Employers with 4 or fewer employees and a net income of over a million dollars are obligated to provide 40 hours of Paid Sick and Safe Leave per calendar year (no prior requirement);
• Employers with 5-99 employees (regardless of net income) are required to provide 40 hours per calendar year (unchanged);
• Employers with 100 or more employees are required to provide 56 hours of paid sick leave per calendar year (previously 40 hours). 

The amendments to the law take effect on September 30, 2020. Employers with employees in New York City should update their policies to avoid exposure.