Federal District Court orders cancellation of R-skins trademark registration

/ Intellectual Property, Trademarks

A federal court has ordered cancellation of the R-skins trademark registration on the grounds that it “may disparage a substantial composite of Native Americans and bring them into contempt or disrepute” in violation of §2(a) of the Lanham Act, 15 U.S.C. §1052(1), at the time of their registrations. Pro-Football, Inc. v. Blackhorse (E.D. Va. 2015).

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Massachusetts state law prohibits covenants that could last forever

/ Real Estate Transactions, Servitudes

Case description here was previously posted but this is an update/correction. Massachusetts statutes limit covenants to 30 years if they contain no time limitation.  Mass Gen. Laws ch. 184, §23. There is an exception for covenants in transfers for public, charitable or religious purposes. Restrictions may be extended beyond thirty years only if, prior to the thirty year time has passed, a majority of the owners agrees to allow extensions for twenty years at a time and the extension is recorded. Mass. Gen. Laws ch. 184, §27(b). The statute allows further extensions on the same conditions, i.e, that a majority of the owners votes to extend the restrictions for another 20 years and that they record their agreement before the end of the 30 year period since the last extension. In Berger v. 2 Wyndcliff, LLC, 2015 WL 1775527 (Mass. Land Ct. 2015), the Massachusetts Land Court read these two statutes together to

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Nuisance claim against nuclear weapons plant proceeds

/ Environmental Law, Nuisance

The Tenth Circuit is allowing a nuisance claim to proceed against a nuclear power plant, finding it not to be preempted by the Price-Anderson Act, 42 U.S.C. §2014, a federal regulatory statute. Cook v. Rockwell Intl Corp., 2015 WL 3853593 (10th Cir. 2015). Property owners claimed damage from the nuclear weapons manufacturing plant causes by releases of plutonium and other hazardous substances from the plant.

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Supreme Court finds fundamental liberty and equality interests in extending right to marry to same-sex couples

/ Antidiscrimination Law, Due Process, Marital Property, Religious Freedom, Sexual Orientation

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly celebrated in other states.

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Supreme Courts affirms disparate impact claims under the Fair Housing Act (with a caveat)

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Real Estate Transactions

The United States Supreme Court announced its decision in Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, — U.S. — (2015), upholding disparate impact claims under the Fair Housing Act (FHA), 42 U.S.C. §3601 et seq. The case involved a challenge to criteria used by a state agency on where to give tax credits that subsidize construction of low-income housing. Plaintiff is a nonprofit organization that promotes housing for low-income families. It claimed that the agency’s formula steered housing to poorer areas and thus perpetuated or aggravated racial segregation in housing. The specific question taken by the Supreme Court was whether disparate impact claims are at all available under the Fair Housing Act. The Court decided that they are but limited them because of constitutional principles. The Court noted that earlier cases had upheld disparate impact claims in employment discrimination when the statutes focused on consequences of

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Takings clause applies to physical seizure of personal property

/ Due Process, Eminent Domain, Personal Property, Takings

The Supreme Court held in Horne v. Dep’t of Agric., — U.S. — (2015), that the takings clause applies to physical takings of personal property (like cars) as well as to real property. Thus a government program designed to shore up the price of raisins by requiring farmers to hand over a certain percentage of the raisin crop to the government effected a categorical physical taking of personal property. The limit on supply of raisins for sale was intended to increase the price farmers receive for the raisins they sell, thus promoting the profitability of their businesses. The expropriated raisins are given away or sold by the government and if any profits remain they are returned to the farmers. The Court held any economic benefits farmers received from increased raisin prices or moneys from sales of the raisins turned over to the government do not affect the question of whether a taking has occurred.

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California Supreme Court Upholds San Jose Inclusionary Zoning Ordinance Against a Takings Challenge

/ Antidiscrimination Law, Eminent Domain, Real Estate Transactions, Takings, Zoning

The California Supreme Court has upheld the inclusionary zoning ordinance of the City of San Jose against a challenge that it constitutes an illegal exaction and violates the state constitution’s takings clause or the federal constitution’s takings clause. Cal. Bldg. Indus. Ass’n v. City of San Jose, 2015 Cal. LEXIS 3905 (Cal. 2015). The ordinance required all new development projects containing 20 housing units or more to reserve 15 percent for sale at affordable prices to low- or moderate-income families. San Jose Mun. Code, §§ 5.08.010 to 5.08.730. The Court held that the municipal government had the power to enact reasonable land use regulations designed to increase the amount and dispersion of affordable housing and that this ordinance served those ends. Because it regulated land use, it did not constitute an “exaction” or forced donation of land to public use. The Court held that so long as a land use regulation does

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Postforeclosure judicial process satisfies due process clause

/ Consumer Protection, Due Process, Mortgages, Real Estate Transactions, Title Issues

The Sixth Circuit has ruled that nonjudicial foreclosure satisfies constitutional due process requirements because the homeowner/borrower was given notice of the foreclosure and notice of who to cure the default or seek a loan modification and how to redeem the property (get it back) after the foreclosure sale during a six-month redemption period. Garcia v. Fed. Nat’l Mortg. Ass’n,  782 F.3d 736 (6th Cir. 2015). These statutory procedures satisfied the constitutional right to notice and an opportunity to be heard before being deprived of a property right.

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Foreclosure complaint can subject law firm & bank to a claim for violating the Fair Debt Collection Practices Act (FDCPA)

/ Consumer Protection, Mortgages, Real Estate Transactions

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., regulates the processes by which debts are collected. The Third Circuit has agreed with other courts in holding that the filing of a foreclosure complaint can subject both the plaintiff bank and the lawyers filing the complaint to liability under the FDCPA. In the case of Kaymark v. Bank of America, N.A., 783 F.3d 168 (3d Cir. 2015), the allegation was that the complaint sought payments that were not yet due — a demand that violated the FDCPA. The Court applied the holding of the Supreme Court case of Heinz v. Jenkins, 514 U.S. 291 (1995) that had established that lawyers are “engage[d] in consumer-debt-collection activity” when they file lawsuits.

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District of Columbia prohibits noncompetition clause in sale of grocery store

/ Real Estate Transactions, Restraints on Alienation, Servitudes

The District of Columbia  passed legislation designed to prevent a grocery store owner from selling the property with a covenant that would have prevented the property from being used for grocery store purposes because this would deny residents in the neighborhood easy access to a grocery store. read article  The legislation is similar to the ruling of the New Jersey court in Davidson Bros, Inc. v. D. Katz & Sons, Inc., 643 A.2d 642 (N.J. Super. Ct. App. Div. 1994).

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