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FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P. v. MOORE

August 10, 2005.

FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P., a California corporation, Plaintiff,
v.
EUGENE "GENE" MOORE, In his capacity as Cook County Recorder of Deeds, Defendant.



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff First American Real Estate Solutions, L.P. ("First American") sued Defendant Eugene Moore, the Cook County Recorder of Deeds, ("Recorder") on April 19, 2005. In its Complaint, First American alleges two claims: (1) violation of the Illinois Counties Code, 55 Ill. Comp. Stat. 5/5-1106.1 (2005); and (2) violation of the Illinois Freedom of Information Act, 5 Ill. Comp. Stat. 140/6(a) (2005). First American now moves for a preliminary injunction. For the reasons discussed below, the Court denies First American's motion.

BACKGROUND

  I. The Parties

  First American is the nation's largest collector and provider of real estate focused public record information. Its coverage extends to more than 95 percent of all real estate in the United States. (R. 1-1, Compl. ¶ 9.) Similar to how LexisNexis and Westlaw compile public legal records, First American amalgamates public real estate transaction records and enhances the information to allow customers to search and organize the records more efficiently. (Id.)

  Recorder is the duly elected recorder of deeds for Cook County, Illinois. (Id. ¶ 10.)

  II. First American's Relationship with Recorder

  Prior to January 26, 2005, First American alleges that it regularly obtained from Recorder copies of public documents recorded and maintained by Recorder, like deeds and mortgages, in bulk form ("Copies"), without restrictions or duplication fees. (Id. ¶ 11.) From approximately 1988 to approximately December 19, 2003, Recorder consistently provided First American and its predecessor with Copies in microfilm format, without use restrictions and for a reasonable duplication fee of $15 per microfilm roll. (Id. ¶ 12.) Around December 19, 2003, Recorder stopped providing First American with Copies in microfilm format, and until November 15, 2004, Recorder regularly provided First American with Copies in Compact Disc-Read Only Memory ("CD-ROM") format, without use restrictions or any duplication fees. (Id. ¶ 13.)

  On or about November 15, 2004, Recorder ceased providing Copies in CD-ROM format and began providing First American with Copies in an electronic format through the Internet, via a File Transfer Protocol ("FTP") site, with no use restrictions or duplication fees. (Id. ¶ 14.) Prior to November 15, 2004, Recorder informed First American that for First American to continue obtaining the Copies by FTP after January 1, 2005, Recorder would require that First American accept the terms of an agreement ("Agreement"). (Id. ¶ 16.)

  III. The Agreement

  Under the section titled "Duties and Obligations of the Purchaser," the Agreement requires that:
Purchaser understands and agrees that it in no way acquires rights to other usage of the recorded document copies or disks, or the data contained thereon, and that Compilation Format of Data is the exclusive property of the Recorder and shall not be resold, transferred, or made available by Purchaser to any other person or entity for any purpose whatsoever, other than as described in this Agreement. No duplication or reproduction of the Recorder's work product in any form or manner, including disk format, shall be permitted.
(R. 1-1, Compl. Ex. A ¶ 2.) In addition, the Agreement requires that First American deposit $125,000.00 with the Recorder on a quarterly basis. (Id. ¶ 3.) The deposit suggests a rate of $0.50 per document. If the deposited funds are insufficient to cover the costs due for the actual number of copies requested by First American, the Agreement would obligate First American to pay an additional $0.50 for every document that exceeds the $500,000.00 already deposited. (Id.)

  IV. First American's Refusal to Accept the Agreement

  First American objected to signing the Agreement, alleging that Recorder is proscribed by law from imposing the fees and restrictions. (R. 1-1, Compl. ¶ 21.) On January 26, 2005, following First American's refusal to accept the Agreement, Recorder terminated First American's access to the FTP site. (Id. ¶ 22.)

  Recorder alleges that two of First American's competitors, Chicago Title and LanData, have accepted the Agreement. (R. 22-1, Def.'s Resp. Ex. B ¶ 18.) Recorder also claims that it provides at least three First American companies with document images via accounts on Recorder's Internet site at $0.50 per document image. Those companies are the following: (1) Optima ...


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