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Zillow’s “Zestimate” Makes Property Owner Fight Back

With the availability of online real estate marketplaces, such as Realator.com and Trulia, a lot of people look online first for their potential new home before looking at any properties in person. Many people also rely on the estimate of a property’s value as provided by such websites to determine just how much they are willing to offer for the property. As a result, the estimates provided by online real estate marketplaces can negatively impact a property’s value or impede its ability to sell. The estimate provided by Zillow has so negatively impacted one homeowner’s efforts to sell her home in Illinois that she is suing the company.

What Happened?

Barbara Andersen has been trying to sell her home in Glenview for a while at the price for which she bought the property. The houses across the street from Ms. Andersen’s home have been selling for $100,000 over Ms. Andersen’s asking price. Despite the higher value of the properties across the street, Zillow’s Zestimate, which is Zillow’s property value estimate, for Ms. Andersen’s property is significantly lower than her asking price. Ms. Andersen asserts that the estimate has prevented her from selling her property for the amount she is seeking. Thus, Ms. Andersen is seeking an injunction to stop Zillow from listing any Zestimate about her property.

What’s the Law Surrounding This?

Illinois attempts to prevent inaccurate property estimates from influencing the real estate market by requiring anyone who wishes to offer appraisals of a property’s worth to obtain a license permitting them to provide real estate appraisals. If a person or a company attempts to offer an appraisal in Illinois without having the proper license, then they have committed a Class A misdemeanor when they offer an appraisal for the first time and a Class 4 felony for any subsequent time that offer an appraisal.

Zillow does claim to have a license that would allow the company to make real estate appraisals, but it does assert that the real estate estimates produced as part of its Zestimate feature do not qualify as appraisals, which means that Zillow does not think that it is violating the law in Illinois. However, an appraisal is essentially defined as an opinion of value by Illinois law. The Zestimate is Zillow’s opinion of how much the property is worth, which can be interpreted as an opinion of the value of a piece of real estate. If the court determines that the Zestimate is an opinion of the value of a piece of real estate, then it will likely find that Zillow is making appraisals of real estate in Illinois.

Although it seems unlikely that a company as well-known as Zillow would not have made sure that it possessed all of the necessary licenses it would need to operate in each state in which is transact business, the employees and owners of Zillow who are involved in the Zestimate feature appear to have issued appraisals for Illinois properties without having a proper license, and are guilty of at least a Class A misdemeanor.

zillowWhat Can Ms. Andersen Do to Succeed?

Proving that a person or a company has committed a crime does not automatically grant a victim of the crime an injunction because only a civil court may grant an injunction. To get an injunction in this situation, Ms. Andersen will need to prove three things: that she has a right that needs to be protected, that she will suffer irreparable harm if an injunction is not granted against Zillow, and a monetary award is not enough to remedy the harm that Ms. Andersen is suffering due to Zillow’s allegedly illegal Zestimate.

It is easy to see that Ms. Andersen has a right that needs to be protected. Anyone who owns a piece of property has the right to dispose of it as they see fit, so long as it does not violate the law. Thus, Ms. Andersen has a right to sell her property. It is clear that, by being based on lower-value property and failing to reflect a fair and accurate of the property, the Zestimate of Ms. Andersen’s property is negatively impacting her ability to sell the property. Assuming that Zillow providing an estimate is illegal, then Ms. Andersen’s right to sell her property is in need of protection from being harmed by Zillow’s illegal action of providing the Zestimate.

Ms. Andersen will also have a reasonably easy time that she will continue to suffer irreparable harm if Zillow is not prevented from continuing to provide a Zestimate for the property. It must be noted that, upon a request by Ms. Andersen, Zillow did manually change the Zestimate to a price that was more comparable to the price at which the property is listed. However, the change only lasted for a brief amount of time before the Zestimate was changed back to the original, much lower amount without any formal explanation for the change. Upon realizing that the Zestimate had been changed back, Ms. Andersen contacted Zillow multiple times, asking the company to either change the Zestimate again or to remove it entirely from the company’s website. Unlike last time, Zillow did not do anything to remove or otherwise alter the current Zestimate. The fact that Zillow reverted back to the original Zestimate relatively soon after changing it and continues to provide it despite Ms. Andersen’s repeated requests demonstrates that the company will likely continue to provide a seemingly inaccurate and harmful assessment of the value of Ms. Andersen’s property unless the court stops Zillow from providing it.

Compared to the first two things that she must prove, it may be more difficult for Ms. Andersen to prove that a monetary award is not enough to compensate her for the harm that Zillow’s actions may have caused her. The harm that Ms. Andersen is suffering as a result of Zillow providing its Zestimate is an inability to sell her property at the current price for which it is listed. Ms. Andersen’s harm appears to be based entirely on money, specifically on the difference in the price that she wishes to receive for her property and the price that Zillow has listed as its Zestimate for the property. Thus, Ms. Andersen’s harm can likely be remedied by an amount of money to compensate her for any difference in price between Ms. Andersen’s estimated value and Zillow’s estimated value because she will not be missing out on any money as a result of having to sell her property at the Zestimate instead of selling it at the price for which she wishes to sell it. As a monetary amount is most likely enough to compensate Ms. Andersen for the harm she has suffered, even if Zillow keeps listing the lower Zestimate for the property, it is unlikely that a court will determine that an injunction is necessary to make sure that Ms. Andersen is adequately compensated for any harm or loss caused by Zillow’s actions.

But Will She Win?

Ms. Andersen, therefore, will likely not be granted an injunction against Zillow because her harm can be remedied with money instead of an injunction, despite the fact that Ms. Andersen will continued to have her rights as a property owner negatively impacted if Zillow is not stopped from providing its Zestimate. However, Zillow’s act of providing a Zestimate on Ms. Andersen’s property is likely against the law in Illinois because Zillow likely lacks the proper credentials required to provide such an assessment. Since this allegedly illegal act does infringe upon Ms. Andersen’s rights with regard to her property, and cause her harm as a result, it is likely that Ms. Andersen will receive compensation for the harm that Zillow has caused her.

Even though Ms. Andersen is unlikely going to be able to get an injunction against Zillow, the company will likely still stop providing Zestimates for not only Ms. Andersen’s property, but also for all properties in Illinois because the court will likely address the matter of whether the Zestimate is an appraisal under Illinois law for which a license is required. If it does find that Zillow needs to possess a license to provide a Zestimate, which seems to be the case, then Zillow will likely remove all Zestimates from Illinois properties until it acquires the necessary license to make appraisals. Thus, Ms. Andersen will likely both get money to make up for any loss that she would experience by having to sell her property for the lower price listed by Zillow and stop Zillow from listing a Zestimate for her property for at least a short while.

What Can We Do If We’re Trying to Sell Our Home?

It can be difficult to sell a property, and the last thing that you need is an outside party trying to devalue your property through an inaccurate appraisal of the value of the property. This is especially true when that outside party is providing an appraisal that appears to be official and reliable, but is actually illegal. If a company is publishing a very inaccurate appraisal of your property and preventing you from selling your property for its true value, then you should contact a real estate lawyer. Not only can they advise you on all of the rights you have as a property owner, but a real estate lawyer can also help you confront the company that is interfering with your right to sell your property and represent you against them in court if necessary.

The Wage Gap: Women Face Lower Wages than Men Based on Salary History

Aileen Rizo was excited to start her new job as a math consultant for Fresno County schools. After working as a schoolteacher in Arizona for 13 years, she began her new job in 2009 with a $62,733 salary. The salary was based on an automatic system where the County added 5% to the applicant’s previous pay rate.

Three years later, Ms. Rizo discovered during lunch hour conversations that a recent hire in her position was earning $79,000 a year. After asking around, she learned that all her male co-workers in her position were also making more than she was. Ms. Rizo filed suit.

The County argued that the Equal Pay Act creates exemptions based on factors other than sex, including seniority, merit, and quality or quantity of work. Salary history could be another factor added to the list. Ms. Rizo won in the trial court, but the three judge appeals panel on the Ninth Circuit agreed with the County and overturned the lower court’s ruling. Rizo’s attorney is considering an appeal to the Supreme Court.

working womenSalary History Could Make Sexism in Pay Rates Worse

The Ninth Circuit panel’s ruling has been widely criticized as perpetrating institutional sexism.  If women are paid 80 cents for every dollar a man earns, then salary history would only continue that trend. In fact, no matter how qualified the woman, she would never catch up with her male counterpart if the system automatically gave them each 5% per year. In fact, the pay rate difference would actually increase which will create a permanent wage gap.

Below is a chart showing this exact issue (all numbers rounded up). If a man earns $79,000 a year and a woman holding the same position earns $62,733 a year and they both received a 5% increase per year, than the difference between their pay rates would slowly climb up over the years:

Women Annual Income Women Hourly Rate Men Annual Income Men Hourly Rate Difference Between Hourly Rates
$62733

 

$33 $79000 $41 $8/hour
$65870

 

$34 $82950 $43 $9/hour
$69164 $36 $87098 $45 $9/hour
$72622

 

$38 $91453 $48 $10/hour
$76253 $40 $96026 $50 $10/hour

 

However, the County’s argument is a fair one. The County did not enact the discrimination, even if the previous salary history was based on sexism. However, there would be no way for the County to know whether a woman earns less than her male co-workers because of her sex or because she’s not a good worker. Ms. Rizo would be well-served if she compared her salary to her female co-workers as well as her male co-workers.

If every woman holding the same position made less than men working the same position, than there would likely be systemic discrimination, even if the County itself did not enact the discrimination. On the other hand, if Rizo’s income is lower than other women as well as other men, than the issue probably lies with Rizo’s performance or career path rather than her sex.

Removing Human Discretion Does Not Make a System More Fair

The biggest issue with this debate is whether systemic sexism is holding half the population back or whether the system truly promotes individual merit. Regardless of which side of the debate you find yourself in though, there is one point that should be obvious. The County argued that since they give everyone they hire a 5% increase regardless of where they came from, then the system cannot be discriminatory. Everyone is given the same 5% raise and there is no human being who could unfairly discriminate based on inappropriate factors.

This assumption, that automation is fairness, needs to die. Simply giving out a 5% increase does nothing to combat inappropriate discrimination because the discrimination is built into the system itself. If a woman always earns less than men, then giving both sexes the same increase does nothing to resolve the issue. Likewise, even if you believe that increases are appropriate, then such increases would also hold back men who deserve the increase, regardless of the sex of their competition.

In short, automation of a system hurts everyone. One can see the same effect in mandatory minimum sentences in criminal law. By taking away human discretion, the system arbitrarily perpetuates increased sentences rather than treating people more fairly. Americans want to increase fairness and so they remove human input. But if some people’s discretion can be biased against a certain class of persons, discretion can also remove it.

Starbucks is Found Liable for Yet Another Hot Coffee Case

A Jacksonville, FL jury has ordered Starbucks to pay $100,000 to Joanne Mogavero after Mogavero was burned by their coffee. In 2014, Mogavero purchased a 20 ounce Venti cup of coffee through the local Starbucks drive-through. After the cashier handed Mogavero the cup to her, the lid popped off as Mogavero was about to pass the cup to her son. The coffee spilled out and Mogavero was covered in 190 degree coffee. Mogavero visited a plastic surgeon to treat the first and second degree burns to her stomach, thighs, and groin, but the surgeon told her she would have to live with the scars.

After Mogavero filed suit, Starbucks attempted to have the case dismissed by arguing that since Mogavero had already accepted the cup from the cashier and was holding the cup when it spilled, that Starbucks could not liable for the accident. The judge allowed the case to proceed to trial. At trial, a Starbucks representative testified that the company received about 80 complaints a month about pop-off lids.

The jury found Starbucks to be 80% liable for the accident and the remaining 20% to be attributable to Mogavero herself.  The jury awarded $85,000 for the

Starbucks

physical impairment and pain and suffering as well as $15,000 for the plaintiff’s medical bills. Starbucks has denied any wrongdoing and has announced it is planning an appeal.The Evolution of Hot Coffee Cases

The Evolution of Hot Coffee Cases

Arguably the most famous personal injury suit is the 1992McDonalds “hot coffee” case.  In that case, an 80 year old woman received third degree burns after the coffee spilled on her.  Her attorneys were successful in arguing that coffee served at 180-190 degrees was unreasonably dangerous.

Over the decades, other hot coffee spill cases have been brought against large corporations such as McDonalds, In-N-Out, and Starbucks. The latest Starbucks case differs slightly from the original McDonalds case. Although the temperature of the coffee in both cases are the same, 190 degrees, Mogavero’s attorneys chose a different route.

Instead of focusing on the temperature of the coffee, the plaintiff’s attorneys here focused on the pop-off lids that caused the spill. Attorneys and judges prefer to focus on precedent, or prior cases, to argue a successful case. However, this successful departure from the norm will benefit consumers in the long run, as plaintiff lawyers now have more than one tool to strike coffee companies with. Conversely, defendants will have to prepare for this new line of assault.

Corporations Should Stop Using the “Control” Argument

On the defense side though, the arguments are parallel. In 1992 and 2017, the focus for the defense is that the customer had control and the corporation no longer did. Since the customer was holding the coffee cup, it was the customer’s fault and therefore McDonalds/Starbucks cannot be liable.

In both cases though, this argument is severally flawed.  First, most states have adopted comparative negligence, which means that juries can assign liability based on percentage.  Attacking the other side is not a good strategy if, at the end of the day, the company is still stuck with 80% of the bill. It’s less than 100%, but still a substantial amount to pay up.

The second flaw with this approach is that it doesn’t really stop the plaintiff from building up a potential case.  In a negligence suit, the customer must show that 1. the company had a duty to be careful, 2. that the company failed in that duty, 3. that failure caused the customer harm, and 4. the harm resulted in injury to the customer. Arguing that the customer had control and therefore the company is not responsible for its product afterwards would invalidate every defective product case. If a microwave burst into flames on its own accord shortly after a customer purchased it, the company selling the microwave would be potentially liable, regardless of whether the appliance burned in the parking lot or at home.

Both McDonalds and Starbucks relied on a “control” argument to dig themselves out of hot coffee cases. If consumers are adapting and winning, companies should avoid using losing arguments.

College Athletes: Students or Employees?

To describe college athletics as a big business would be an understatement. Each game a college team participates in during March Madness earns the conference the school is out of nearly $2M. Just this year NCAA basketball tournament play alone earned Gonzaga around $8.5M. As of last year, 24 universities were raking in over $100M off college athletics yearly–UCLA just missed the cut with about $97M on the year while Texas A&M made nearly $200M.

With so much money being made off the performances of student athletes, the fact that those athletes are paid nothing and outright forbidden from receiving any money for their performances has long been a hot topic in the courts. Many athletes and legal commentators have described the situation as unfairly designed to allow schools to derive every avenue of profit from a student athlete–merchandising sales, advertising, etc. However, the courts have historically come down against student athletes being compensated in any way.

Just a few weeks ago, a California District Court continued this trend by ruling that a college football player is not an employee of the school he plays for.  In the suit, the player–formerly out of USC–was seeking pay and overtime for the many hours he was required to play and practice. Let’s take a look at his case, the result, and the history of similar cases over the past several years.

College AthletesLamar Dawson’s Lawsuit

Lamar Dawson had played football for the University of Southern California for the entire time he attended the university. This often required him to frequently practice, workout, and play over 40 hours in a week. If he were an employee, spending this sort of time would equate to being paid overtime for his efforts. However, as an amateur athlete he was provided essentially nothing at all. In his lawsuit, he pointed to all this time he spent, and the control USC had over his life and what he could do while remaining a student athlete, and argued that he should be treated as an employee of the school.

Mr. Dawson was suing under the Fair Labor Standards Act (FLSA), a law providing federal guidelines for both minimum wage and overtime pay for employees. However, under the FLSA only employees can recover for a claim of unpaid wages or overtime. Thus, whether Mr. Dawson was an employee or not was the central question of the case. The FLSA describes somebody as an employee where an employer “suffers or permits them to work.”  This is a broad definition, if somebody shows up and starts working and the employer learns about that fact and lets them continue the guy who showed up is probably an employee.

The Ninth Circuit, where this case took place, normally uses a multifactor test to decide whether a given person is an employee. They look at whether the potential employer 1) had the power to hire and fire employees; 2) controlled schedule and conditions of employment; 3) determined the rate of payment; and 4) maintained employment records. They look at this, and other surrounding circumstances, to decide whether somebody was an employee. If this were the test used, Mr. Dawson would have had an interesting case. His school certainly controlled whether or not he could continue as a student athlete and they also restricted his diet, schedule, and many more aspects of his life. However, the court chose to use another test in making their determination–a “true nature of the relationship test.”

This is not unheard of or out of the blue, many courts have rejected the multifactor test where it does not properly map to the situation at hand. The court felt that was the case here. They instead relied heavily on the Seventh Circuit Berger decision from last year–pitting the NCAA and Penn State against a former football player–where the court determined that the athlete was not an employee due to the “long tradition of amateurism in college sports” and the voluntary nature of participating in college athletics. They basically decided that because the athletes go in, of their own volition, expecting not to be paid they can’t be athletes. Using this justification, both courts decided that student athletics is not “work” under the FLSA and the athletes are not employees.

Shifting Landscape on Pay for Play Student Athletes

Despite how his case went, it’s not so surprising that Mr. Dawson chose now to bring his case. It has long been the case that the NCAA rules prohibit college athletes from making money off their play. Whether that is actual pay from a university or the student profiting off their popularity through marketing their name, image, or likeness. However, as student athletics becomes more and more of an earner for universities there has been an accompanying outcry to allow the athletes to have at least a small piece of that pie.

As schools take more and more control over the lives of their athletes and demand more and more of their time–often well over 40 hours a week. A backlash in the courts was inevitable. In 2014, the National Labor Relations Board (NLRB) ruled that due to the immense control Northwestern University was exerting over its athletes–athletes had to ask permission regarding living arrangements, social media posts, food they ate, outside employment, when and where they could drive off-campus, and more–the students in the case were employees. The ruling was short lived, on appeal the NLRB overruled themselves, saying that such a determination “would not promote stability in labor relations.”  However, the appeal still left the door open by saying that subsequent changes in how student athletes are treated could still make an athlete an employee.

Just last year, another case claiming that universities profit off student athletes’ names and likenesses without paying those students led to a decision that the NCAA’s rules disallowing compensation violate anti-trust laws. However, the decision was once again mostly torpedoed on appeal with a court saying that allowing student athletes to profit off their play would remove the distinction between amateur and pro sports. While the appeals court still agreed that selling the names and likenesses of students for TV broadcasts and video games violated the law, they stopped short of allowing actual compensation to student athletes. They instead increased the amount of compensation allowed to include “the full cost of attendance.”  This basically means both tuition and living expenses.

These rulings, while ultimately made much less impactful after appeal, have served to undercut the NCAA’s long-held assertion that the very fact that college athletics is amateur in nature by itself rules out the need for compensation and the potential for these athletes to be treated as employees. This has led to more and more legal challenges, such as Mr. Dawson’s, to how the NCAA handles its student athletes. However, despite these cases indicating a change in the legal landscape, those seeking to change how student athletics is handled face quite an uphill climb.

The Department of Labor operations handbook outright excludes student athletes from the definition of an employee under the FLSA. In California, student athletes have been statutorily barred from receiving workers’ compensation  as non-employees in response to a court case which  ruled otherwise. Student athletes have also been ruled to be excluded from treatment as employees in a number of other contexts–tort law, under the Fair Employment and Housing Act, and more.

While the door has been opened to these types of lawsuits by the changing landscape of collegiate athletics as a big business, there is still a lot of ground to cover before Mr. Dawson will be likely to succeed. His case will certainly be appealed, and that is an appeal to watch, but the state of the law has not shifted so much that his chances are particularly strong.

FMLA: Your Rights May Have Been Expanded by the 6th Circuit

Just a few days back, the 6th Circuit Appeals Court made a ruling in the case of Marshall v. Rawling Co. which has the potential to substantially expand your rights under the Family and Medical Leave Act (FMLA).  They did this by expanding the situations in which a company can be liable for taking adverse action against you after you assert your FMLA rights.

The 6th Circuit did this by accepting cat’s paw liability in FMLA claims. Cat’s paw liability refers to a situation where one party uses another to accomplish their purpose. This has the potential to give you a case against an employer for FMLA violations where one previously didn’t exist. I’ve discussed the FMLA, and how to protect your rights under it, in a previous article. So, with that in mind, we’ll focus here on what the FMLA is and how this ruling changes your rights under this act.

What is the FMLA?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness. In fact, it only applies to employers with more than 50 employees at a single location. If it applies, then the employer must extend the protections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

FMLAEven if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

The Facts of the Marshall Case

Gloria Marshall, an employee of Rawling, suffers from depression, anxiety, and post-traumatic stress disorder.  But to find the time to receive treatment for these mental-health problems, Ms. Marshall took time off from work using FMLA leave.  When Ms. Marshall returned, she had a backlog of work due to her unexpected leave leaving her with unfinished projects when she left.  These combined with the new work assigned to her to leave her overwhelmed.  She requested help with this work and, while Rawling says she received that help, she says they refused.  Other employees in similar positions also testified that basically every employee had a backlog to some extent due to the amount of work assigned to each employee.  While Ms. Marshall eventually cleared this backlog, the Vice President of the company-Jeff Bradshaw-made it clear in emails that he was worried about another backlog arising.

Ms. Marshall was subsequently demoted after Mr. Bradshaw recommended a demotion to her division head Laura Plumley.  This demotion was apparently unrelated to the FMLA leave.  Ms. Marshall continued to take occasional FMLA leave, but apparently excelled in her new position.  Despite this, Bradshaw apparently severely criticized her performance and singled her out at work in embarrassing ways.  At a meeting, Bradshaw made it clear he was disappointed in how often she had taken FMLA leave.  Ms. Marshall eventually reported Mr. Bradshaw’s treatment of her, although she delayed out of fear of being fired. The allegations were reported to the company’s owner George Rawlings, who decided that she was making false reports to cover poor performance and fired her.  Ms. Marshall sued, saying that her firing was retaliation for her FMLA leave.

What Does the Marshall Ruling Mean For Your Rights?

This is where the cat’s paw theory of liability comes into play, and where the 6th Circuit Appeals Court’s decision comes into play. For instance, there have been cases where a company is liable for discriminatory firing where a biased subordinate uses an official decision maker as a sort of a dupe in enacting their own scheme of by asserting their own influence on that decision maker.

The idea behind cat’s paw liability is that the organizational chart of a company doesn’t necessarily reflect the true decision making process.  As in the example above, a decision maker will often rely on the recommendations of others lower on the totem pole or unrelated to the decision-as Ms. Plumley did with Jeff Bradshaw’s recommendation when she demoted Ms. Marshall.  Basically, this decision means that if somebody who doesn’t make the final decision as to your employment status mistreats you based on your FMLA rights you may still have a lawsuit despite the fact that they aren’t the ones taking adverse employment action against you.

The 6th Circuit Appeals Court is not the law over the entirety of the U.S.  However, the decision has the potential to very persuasive in other Circuits and is the law in the states of Michigan, Ohio, Tennessee, and Kentucky.  The case is even more persuasive as many other Circuits have consistently applied cat’s paw liability in other employment contexts such as Title VII discrimination cases.  The exact impact of the case is yet to be seen.  However, there is no question that your FMLA rights just got stronger.