United States District Court, N.D. Illinois, Eastern Division
August 10, 2005.
FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P., a California corporation, Plaintiff,
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.
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.
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 Information
Solutions; (2) DataTree; and (3) First American Real Estate
Solutions. (Id. ¶ 17.)
IV. First American's Proof of Irreparable Harm
Tina Locklear ("Locklear"), Vice President and General Counsel
of First American, claims that public real estate transaction records are critical
to First American's customers. (R. 12-1, Pl.'s Mot. Prelim. Inj.
Ex. A ¶ 4.) Locklear alleges that the use restraints prevent
First American from providing timely Cook County real estate
transaction information to its clients. (Id. ¶ 7.) Locklear
purports that a failure by First American to provide timely real
estate transaction information will ultimately cause First
American to lose customers to its competitors. (Id.)
I. Legal Standard
To obtain a preliminary injunction, a party must first show:
(1) that it has a reasonable likelihood of success on the merits
of its underlying claim; (2) that it has no adequate remedy at
law; and (3) that it will suffer irreparable harm without the
preliminary injunction. AM Gen. Corp. v. DaimlerChrysler Corp.,
311 F.3d 796, 803-04 (7th Cir. 2002) (citing Anderson v.
U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 474 (7th Cir.
2001) and Re/Max North Cent., Inc. v. Cook, 272 F.3d 424,
429-30 (7th Cir. 2001)). If a plaintiff meets those burdens,
the court then must consider any irreparable harm the preliminary
injunction might impose upon the party against whom the
injunction is sought and whether the preliminary injunction would
harm or foster the public interest. Id.
In assessing harm, "[t]he only harm that is relevant to the
decision to grant a preliminary injunction is irreparable harm,
since if it is reparable by an award of damages at the end of
trial[,] there is no need for preliminary relief." In re Aimster
Copyright Litig., 334 F.3d 643, 655 (7th Cir. 2003)
(emphasis added). When there is no showing of irreparable harm,
the court should deny a preliminary injunction on that ground
alone. Praefke Auto Elec. & Battery Co. v. Tecumseh Prod.s Co., Inc., 255 F.3d 460, 463 (7th Cir.
As discussed below, First American fails to show that it will
suffer irreparable harm should the Court deny its motion for a
preliminary injunction. Accordingly, the Court need not address
the remaining factors relevant to a preliminary injunction
II. First American Has Not Established Irreparable Harm
Recorder argues that First American's alleged harm from having
to sign the Agreement is monetary, and therefore not irreparable.
The Court agrees.
First American fails to meet its burden of proving irreparable
harm. The Seventh Circuit has clearly held that courts should
deny preliminary injunctions when the moving party does not show
that it will incur irreparable harm. See Praefke, 255 F.3d 460,
462-63. When losses are "purely financial, easily measured, and
readily compensated," there is no showing of irreparable harm.
Id. at 463 (citing Roland Mach. Co. v. Dresser Indus., Inc.,
749 F.2d 380, 386 (7th Cir. 1984)). In Praefke, the
plaintiff was a wholesaler for the defendant, which entitled the
plaintiff to purchase the defendant's products at discounted
prices. Id. at 462. The defendant then terminated a contract
that controlled its distribution, resulting in the plaintiff
losing its wholesaler status. Id. The plaintiff continued to
sell the defendant's products, but no longer received any
discounts. Id. Subsequently, the plaintiff filed a lawsuit
seeking reinstatement as a wholesaler, and moved for a
preliminary injunction in the interim. Id.
Finding that the plaintiff was only facing a reduction in
profits, the Seventh Circuit held that there was no showing of
irreparable harm. Although the change forced the plaintiff to buy
defendant's products at higher prices, there was no disruption of
its dealer network. Id. Furthermore, even though the increased
prices reduced the plaintiff's profits, the defendant's parts were only a small part of the plaintiff's business.
Therefore, "[plaintiff's] profits [did not fall] to a point that
threaten[ed] its solvency." Id. at 463. Any losses were solely
pecuniary in nature and were readily calculable and the Seventh
Circuit upheld the trial court's denial of the preliminary
The facts in this case parallel those of Praefke. In the
past, First American received copies for free or for a nominal
fee. (R. 1-1, Compl. ¶ 11.) Now, Recorder is permitting the free
viewing of the public records, but is imposing a $0.50 fee for
any copy printed from the FTP site. (R. 1-1, Compl. ¶¶ 17-18.)
The Agreement would obligate First American to pay roughly
$500,000.00 a year depending on the amount of copies it requests.
Just as the Seventh Circuit found in Praefke, this amount is a
pecuniary value that is "easily measured" and "readily
compensated." See Praefke, 255 F.3d at 463.
First American does not offer any evidence that it could not
pay the fee,*fn1 or any other evidence of any non-monetary
injury. First American argues that the Agreement places use
restrictions on First American which would ultimately result in
First American losing its Chicago-land area customers. (R. 12-1,
Pl.'s Mot. Prelim. Inj. p. 5). The evidence before the Court,
however, does not support this argument. First American submits
an affidavit from its Vice President Tina Locklear ("Locklear"),
vaguely claiming that the use restrictions will prevent First
American from providing timely information to its clientele. (R.
12-1, Pl.'s Mot. Prelim. Inj. Ex. A ¶ 7). There is no evidence that explains why
this is the case. Notably, First American does not state that the
restrictions will inhibit First American from conducting its
business, thereby leading to a loss of customers. While First
American states that it will suffer a delay due to the
restrictions, it does not attempt any explanation as to why it
would suffer a delay in providing the information to its clients
due to the use restrictions. In fact, two of First American's
competitors, Chicago Title and LanData, have signed the
Agreement. (R. 22-1, Def.'s Resp. Ex. B ¶ 18.) As Recorder
correctly points out, First American offers no explanation as to
why it cannot pay the fee like its competitors have, or exactly
how and why it would incur irreparable harm due to the use
Accordingly, the most that First American can establish is that
in order to maintain the status quo, it would have to pay the fee
required by the Agreement, and therefore suffer diminished
profits. First American can recoup any of the losses it sustains
from paying the fee through traditional litigation
methods.*fn2 The loss First American will experience in its
profits does not amount to irreparable harm and the Court denies
First American's motion for a preliminary injunction. CONCLUSION
Because First American has not met its burden of showing that
it will suffer irreparable harm, the Court denies First
American's motion for a preliminary injunction.