Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
HL EXHIBIT 68
ELIZABETH NUNAN AFFIDAVIT
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK as Administrators of )
the Estate of Winifred Berk, and PAUL )
BENJAMIN, on behalf of themselves and all ) AFFIDAVIT
others similarly situated, )
) hidex No. 60767/2018
Plaintiffs, ) Hon. Linda S. Jamieson
)
vs. )
)
HOULIHAN/LAWRENCE INC., )
)
Defendant. )
)
AFFIDAVIT
Elizabeth Nunan, being first duly sworn, deposes and says:
1. My name is Elizabeth Nunan. I am over 18 years of age, and I live in Katonah,
New York.
2. I have been in the real estate business since 1988. I first became affiliated with
Houlihan Lawrence in 1997 and worked there in various capacities until June 2017, ultimately
reaching the level of Vice President, Global Business Development. After a brief time with
Leading Real Estate Companies of the World, I rejoined Houlihan Lawrence as its chief
operating officer in September 2018, and I became its president in September 2019 and chief
executive officer in March 2020. I continue to hold those positions today.
3. Houlihan Lawrence is a New York real estate brokerage company, with 30 offices
and over 1,400 affiliated real estate agents who operate under the Houlihan Lawrence brand.
4. Consistent with industry practice, almost all of the individual real estate agents
affiliated with Houlihan Lawrence are independent contractors. As independent contractors,
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
these agents exercise substantial discretion in performing their duties as real estate professionals.
Among other things, they decide how to market themselves; they prepare their own advertising
materials; they decide how much to work; they choose whether to hire assistants; they choose
whether to work in teams; and they maintain their own real estate salesperson or broker licenses
with the State of New York.
manager"
5, Each Houlihan Lawrence office has an "office who is a company
employee. Some of these individual employees serve as the manager for more than one office at
the same time. One of the manager's primary functions is to recruit independent contractor
agents to work with Houlihan Lawrence. Additionally, Houlihan Lawrence managers will,
among other tasks, provide support to agents when requested, organize office events, supervise
any administrative staff working in the office, and assist in resolving any disputes between
agents.
6, Houlihan Lawrence competes vigorously with other brokerages to attract agents
to join its brand. It is common for agents to move among multiple brokerages during their
careers. The barriers to moving among brokerages are low, and brokerages compete with one
"brand"
another on multiple bases, including the perceived value of their to the consumer, the
technological tools provided to agents, support staff provided to agents, and commission splits
between brokerages and agents.
7. Houlihan Lawrence agents receive training relating to dual agency from a variety
of independent sources. As a preliminary matter, all real estate training courses and materials
offered by Houlihan Lawrence to its real estate agents are optional and Houlihan Lawrence has
never required its agents to attend any particular training. Our real estate agents in New York
have completed the state-required courses or otherwise qualified to become licensed either as a
2
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
salesperson or an associate real estate broker under New York law. To maintain such a license,
the agent must take continuing education courses. The content of these New York-prescribed
courses is dictated by the State of New York, and all Houlihan Lawrence-affiliated agents
receive their training from independent, state-certified instructors. In addition, our real estate
agents are members of the National Association of REALTORS®, the New York State
Association of REALTORS®, and local boards of REALTORS® (such as the Hudson Gateway
Association of REALTORS®). These associations host numerous events and gatherings
throughout the course of the year, and many of these events include presentations and training on
various topics related to being a real estate agent.
8. On some occasions, Houlihan Lawrence brought in independent, outside
resources to provide optional training regarding dual agency disclosures. For example, Houlihan
Lawrence brought in Don Cummins (Director of Legal Affairs) and Leon Cameron (Director of
Legal Services and Professional Standards) from the Hudson Gateway Association of
REALTORS® ("HGAR") to discuss dual and designated dual agency. Houlihan Lawrence never
told real estate agents to ignore Cummins nor Cameron's training on dual agency. Nor has
Houlihan Lawrence ever directed, instructed, or encouraged agents to ignore the dual-agency
related training they received from any other source. Instead, Houlihan Lawrence has always
relied on its agents to use their own experience and understanding of their obligations as licensed
real estate agents to disclose their agency status to their clients and to obtain informed consent to
any dual agency or dual agency with designated salespersons transactions.
9. Houlihan Lawrence agents had access to many documents during the class period,
either directly or through their managers, that reminded them of the impact of dual agency
(including designated agency) on their fiduciary obligations, including the following:
3
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
" The New York State official 443 Disclosure Form itself, which states
expressly
that neither dual agents nor designated agents can provide undivided loyalty to
their clients;
" The HL Best Practices which states that neither dual agents
document, similarly
nor designated agents can provide undivided loyalty to their clients;
" The Houlihan Lawrence Exclusive Right to Sell which states
listing agreement,
that neither dual agents nor designated agents can provide undivided loyalty;
"
Any training materials provided by HGAR or other similar entities ;
" Forms from the New York State Association of REALTORS® ("NYSAR"),
which remind them of the impact of dual agency and dual agency with
designated salespersons on their fiduciary duties; and
" Houlihan Lawrence's Buyer Clients, which states
Policy Regarding expressly
that agents cannot provide undivided loyalty in a dual agency transaction.
10. It is not unco1mnon for a prospective buyer to contact a listing agent directly
about a particular house that is listed for sale and to then remain unrepresented throughout the
transaction. In such cases, Houlihan Lawrence's accounting records do not distinguish between
these transactions where a single agent represented the seller and the buyer was unrepresented
and transactions where both the seller and the buyer were represented by the same agent.
Because the compensation paid to both Houlihan Lawrence and the agent involved in those types
of transactions would generally be the same whether the buyer was unrepresented or the agent
served as a dual agent, there is generally no business reason for Houlihan Lawrence to
distinguish between these two types of transactions in its accounting system.
4
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
11. I understand that the Plaintiffs in this case allege that Houlihan Lawrence imposed
a uniform script on its agents for how to describe dual agency in some misleading way in order
to trick them into consenting. That is false. Houlihan Lawrence has never imposed any type of
"script"
on its agents for how to handle the Agency Disclosure Form or to otherwise describe
dual agency or dual agency with designated salespersons. Instead, Houlihan Lawrence has relied
on its agents to use their own training and experience, which includes the state-mandated training
required to obtain and maintain a real estate license under New York law, when presenting these
topics and obtaining consent to dual and designated agency.
12. Houlihan Lawrence expects its agents to describe their role in a transaction
accurately and clearly, and I believe that our agents act consistently with this expectation. In fact,
prior to the filing of this lawsuit, I am not aware of any complaints by any Houlihan Lawrence
clients in which those clients claimed not to have understood the dual agency character of their
transactions.
13. I also understand that the Plaintiffs in this case have alleged that the in-house
bonus program at Houlihan Lawrence is part of soine orchestrated strategy to increase the
number of dual agency transactions. That is false. Houlihan Lawrence does not have any interest
in increasing the number of dual agency transactions. Instead, our interest is in generating
satisfied clients. If our agents were working to push sellers to accept inferior offers or to push
buyers to overpay or otherwise purchase the wrong house, they would be risking the long-term
value of that client and future positive which - in experience - would not make
referrals, my
sense as a business practice.
14. I am a citizen of the United States, and I am competent to give testimony in this
matter, Unless stated otherwise, the above testimony is based on my own personal knowledge.
5
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
Elizabe Nunan
Sworn to and subscribed before me
this day of RaF4 2024.
ARY PUBLIC
SEAL
JUDI E MacSHANE
Notary Public, State of New York
No. 01MA6000323
Qualified in Westchester
County
Cornmission Ex pires
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024
Certificate of Counsel
Pursuant to Conunercial Division Rule 17
I, Robert D. MacGill, counsel for Defendant, hereby certify, pursuant to
Commercial Division Rule 17, that the word count for the foregoing document, excluding
the caption, table of contents, table of authorities, and signature block, is 1837 words.
This document therefore complies with the rule that limits briefs, memoranda,
affirmations, and affidavits to 7,000 words. I certify that the Microsoft Word generated
word count for this document is 1337 words.
Dated: Indianapolis, Indiana
March 11, 2024
/s/Robert D. MacGill
Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 HL EXHIBIT 68 ELIZABETH NUNAN AFFIDAVIT FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ) ELLYN & TONY BERK as Administrators of ) the Estate of Winifred Berk, and PAUL ) BENJAMIN, on behalf of themselves and all ) AFFIDAVIT others similarly situated, ) ) hidex No. 60767/2018 Plaintiffs, ) Hon. Linda S. Jamieson ) vs. ) ) HOULIHAN/LAWRENCE INC., ) ) Defendant. ) ) AFFIDAVIT Elizabeth Nunan, being first duly sworn, deposes and says: 1. My name is Elizabeth Nunan. I am over 18 years of age, and I live in Katonah, New York. 2. I have been in the real estate business since 1988. I first became affiliated with Houlihan Lawrence in 1997 and worked there in various capacities until June 2017, ultimately reaching the level of Vice President, Global Business Development. After a brief time with Leading Real Estate Companies of the World, I rejoined Houlihan Lawrence as its chief operating officer in September 2018, and I became its president in September 2019 and chief executive officer in March 2020. I continue to hold those positions today. 3. Houlihan Lawrence is a New York real estate brokerage company, with 30 offices and over 1,400 affiliated real estate agents who operate under the Houlihan Lawrence brand. 4. Consistent with industry practice, almost all of the individual real estate agents affiliated with Houlihan Lawrence are independent contractors. As independent contractors, FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 these agents exercise substantial discretion in performing their duties as real estate professionals. Among other things, they decide how to market themselves; they prepare their own advertising materials; they decide how much to work; they choose whether to hire assistants; they choose whether to work in teams; and they maintain their own real estate salesperson or broker licenses with the State of New York. manager" 5, Each Houlihan Lawrence office has an "office who is a company employee. Some of these individual employees serve as the manager for more than one office at the same time. One of the manager's primary functions is to recruit independent contractor agents to work with Houlihan Lawrence. Additionally, Houlihan Lawrence managers will, among other tasks, provide support to agents when requested, organize office events, supervise any administrative staff working in the office, and assist in resolving any disputes between agents. 6, Houlihan Lawrence competes vigorously with other brokerages to attract agents to join its brand. It is common for agents to move among multiple brokerages during their careers. The barriers to moving among brokerages are low, and brokerages compete with one "brand" another on multiple bases, including the perceived value of their to the consumer, the technological tools provided to agents, support staff provided to agents, and commission splits between brokerages and agents. 7. Houlihan Lawrence agents receive training relating to dual agency from a variety of independent sources. As a preliminary matter, all real estate training courses and materials offered by Houlihan Lawrence to its real estate agents are optional and Houlihan Lawrence has never required its agents to attend any particular training. Our real estate agents in New York have completed the state-required courses or otherwise qualified to become licensed either as a 2 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 salesperson or an associate real estate broker under New York law. To maintain such a license, the agent must take continuing education courses. The content of these New York-prescribed courses is dictated by the State of New York, and all Houlihan Lawrence-affiliated agents receive their training from independent, state-certified instructors. In addition, our real estate agents are members of the National Association of REALTORS®, the New York State Association of REALTORS®, and local boards of REALTORS® (such as the Hudson Gateway Association of REALTORS®). These associations host numerous events and gatherings throughout the course of the year, and many of these events include presentations and training on various topics related to being a real estate agent. 8. On some occasions, Houlihan Lawrence brought in independent, outside resources to provide optional training regarding dual agency disclosures. For example, Houlihan Lawrence brought in Don Cummins (Director of Legal Affairs) and Leon Cameron (Director of Legal Services and Professional Standards) from the Hudson Gateway Association of REALTORS® ("HGAR") to discuss dual and designated dual agency. Houlihan Lawrence never told real estate agents to ignore Cummins nor Cameron's training on dual agency. Nor has Houlihan Lawrence ever directed, instructed, or encouraged agents to ignore the dual-agency related training they received from any other source. Instead, Houlihan Lawrence has always relied on its agents to use their own experience and understanding of their obligations as licensed real estate agents to disclose their agency status to their clients and to obtain informed consent to any dual agency or dual agency with designated salespersons transactions. 9. Houlihan Lawrence agents had access to many documents during the class period, either directly or through their managers, that reminded them of the impact of dual agency (including designated agency) on their fiduciary obligations, including the following: 3 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 " The New York State official 443 Disclosure Form itself, which states expressly that neither dual agents nor designated agents can provide undivided loyalty to their clients; " The HL Best Practices which states that neither dual agents document, similarly nor designated agents can provide undivided loyalty to their clients; " The Houlihan Lawrence Exclusive Right to Sell which states listing agreement, that neither dual agents nor designated agents can provide undivided loyalty; " Any training materials provided by HGAR or other similar entities ; " Forms from the New York State Association of REALTORS® ("NYSAR"), which remind them of the impact of dual agency and dual agency with designated salespersons on their fiduciary duties; and " Houlihan Lawrence's Buyer Clients, which states Policy Regarding expressly that agents cannot provide undivided loyalty in a dual agency transaction. 10. It is not unco1mnon for a prospective buyer to contact a listing agent directly about a particular house that is listed for sale and to then remain unrepresented throughout the transaction. In such cases, Houlihan Lawrence's accounting records do not distinguish between these transactions where a single agent represented the seller and the buyer was unrepresented and transactions where both the seller and the buyer were represented by the same agent. Because the compensation paid to both Houlihan Lawrence and the agent involved in those types of transactions would generally be the same whether the buyer was unrepresented or the agent served as a dual agent, there is generally no business reason for Houlihan Lawrence to distinguish between these two types of transactions in its accounting system. 4 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 11. I understand that the Plaintiffs in this case allege that Houlihan Lawrence imposed a uniform script on its agents for how to describe dual agency in some misleading way in order to trick them into consenting. That is false. Houlihan Lawrence has never imposed any type of "script" on its agents for how to handle the Agency Disclosure Form or to otherwise describe dual agency or dual agency with designated salespersons. Instead, Houlihan Lawrence has relied on its agents to use their own training and experience, which includes the state-mandated training required to obtain and maintain a real estate license under New York law, when presenting these topics and obtaining consent to dual and designated agency. 12. Houlihan Lawrence expects its agents to describe their role in a transaction accurately and clearly, and I believe that our agents act consistently with this expectation. In fact, prior to the filing of this lawsuit, I am not aware of any complaints by any Houlihan Lawrence clients in which those clients claimed not to have understood the dual agency character of their transactions. 13. I also understand that the Plaintiffs in this case have alleged that the in-house bonus program at Houlihan Lawrence is part of soine orchestrated strategy to increase the number of dual agency transactions. That is false. Houlihan Lawrence does not have any interest in increasing the number of dual agency transactions. Instead, our interest is in generating satisfied clients. If our agents were working to push sellers to accept inferior offers or to push buyers to overpay or otherwise purchase the wrong house, they would be risking the long-term value of that client and future positive which - in experience - would not make referrals, my sense as a business practice. 14. I am a citizen of the United States, and I am competent to give testimony in this matter, Unless stated otherwise, the above testimony is based on my own personal knowledge. 5 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) Elizabe Nunan Sworn to and subscribed before me this day of RaF4 2024. ARY PUBLIC SEAL JUDI E MacSHANE Notary Public, State of New York No. 01MA6000323 Qualified in Westchester County Cornmission Ex pires FILED: WESTCHESTER COUNTY CLERK 03/11/2024 10:30 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1741 RECEIVED NYSCEF: 03/11/2024 Certificate of Counsel Pursuant to Conunercial Division Rule 17 I, Robert D. MacGill, counsel for Defendant, hereby certify, pursuant to Commercial Division Rule 17, that the word count for the foregoing document, excluding the caption, table of contents, table of authorities, and signature block, is 1837 words. This document therefore complies with the rule that limits briefs, memoranda, affirmations, and affidavits to 7,000 words. I certify that the Microsoft Word generated word count for this document is 1337 words. Dated: Indianapolis, Indiana March 11, 2024 /s/Robert D. MacGill