RISMEDIA, March 15, 2007-If the recent class action motion filed by patent holder Real Estate Alliance, Ltd. (REAL) is certified by Federal Judge Golden in the Eastern District of Pennsylvania, later this month, it could immediately implicate hundreds of thousands of real estate professionals throughout the United States, according to documents filed in the district court late last week.
A finding of infringement in this one case, REAL vs. Diane Sarkisian et al, which has gone on for more than a year now in relative obscurity, could result in the immediate finding of liability against tens of thousands of individual agents and brokers defined in the class. The National Association of Realtors was aware of this potential more than a year ago. According to the motion, official minutes from an NAR board meeting in 2006 cited the association's concern that there was a high likelihood of such broad implication if the patent could not be invalidated.
In an effort to control the situation, the NAR and its affiliates have already fully underwritten all of the legal costs and indemnified the defendant in this one case with nearly $2 million dollars. No funds were apparently anticipated for the remaining members that may now be implicated by this class action motion.
The class filing seeks certification of two groups, one group is labeled as "Trend," and represents the MLS members who similarly use and benefit from the infringing process provided to approximately 30,000 subscribers by the regional MLS organization Trend.
The second group labeled as Realtor.com seeks to estabilish liability for those agents who knowingly used enhanced listings and or benefited from utilization of enhanced listings on the Realtor.com site from July 12, 1999 to the present. The elements required to certify a class include 1.) numerousity, Defendant numbers sufficiently large to make sequential defense unmanageable or unfair to the plaintiff. 2.) Questions of law and fact common to both classes. 3.) Defense of the key case is typical of other classes. 4.) Ability of the legal defense team to adequately handle the litigation.
Responses to the motion should be filed before the end of the March. The current case is likely to proceed on its planned course in an effort to establish the facts of validity, infringement, and damages. The class motion in essence would attribute that finding onto all of the other co-defendants in the action. The patent holder has offered paid up licenses at a cost of $10,000 for a single user. According to other articles, the patent holder states that this license fee represents "only a portion of the anticipated damages" that it believes it could be awarded by the courts based on past damage settlements of similar cases.
Additional activity in this case includes the judge recently denying all of the motions of the NAR lead-defense which requested, in a Daubert Motion, to have the court throw out all of the patent holders' expert witnesses. All of those experts will remain in and will be relied upon to establish the points of fact in the summary filings. Summary judgment motions were filed last week. These motions will layout the factual basis for each litigants pleading. A reading of these submissions by a competent IP attorney could reveal a great deal about where this case may be heading.