Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Notices 81489 

1Under the proposed Final Judgment, an ‘‘MLS 

Participant’’ is defined as ‘‘a member or user of, a 

participant in, or a subscriber to an MLS.’’ (See 

Proposed Final Judgment, Section II—Definitions.) 

2, that the portions of the meeting 

dealing with the discussion of questions 

that may appear on the Joint Board’s 

examinations and the review of the 

November 2020 Pension (EA–2F) 

Examination fall within the exceptions 

to the open meeting requirement set 

forth in 5 U.S.C. 552b(c)(9)(B), and that 

the public interest requires that such 

portions be closed to public 

participation. 

The portion of the meeting dealing 

with the discussion of the other topics 

will commence at 1:00 p.m. (EST) on 

January 4, 2021 and will continue for as 

long as necessary to complete the 

discussion, but not beyond 3:00 p.m. 

(EST). Time permitting, after the close 

of this discussion by Advisory 

Committee members, interested persons 

may make statements germane to this 

subject. Persons wishing to make oral 

statements should contact the 

Designated Federal Officer at 

NHQJBEA@IRS.GOV and include the 

written text or outline of comments they 

propose to make orally. Such comments 

will be limited to 10 minutes in length. 

Persons who wish to attend the public 

session should contact the Designated 

Federal Officer at NHQJBEA@IRS.GOV 

to obtain teleconference access 

instructions. Notifications of intent to 

make an oral statement or to attend the 

meeting must be sent electronically to 

the Designated Federal Officer by no 

later than December 31, 2020. In 

addition, any interested person may file 

a written statement for consideration by 

the Joint Board and the Advisory 

Committee by sending it to NHQJBEA@

IRS.GOV. 

Dated: December 11, 2020. 

Thomas V. Curtin, 

Executive Director, Joint Board for the 

Enrollment of Actuaries. 

[FR Doc. 2020–27692 Filed 12–15–20; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. National Association of 

REALTORS® Proposed Final Judgment 

and Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

National Association of REALTORS®, 

Civil Action No. 1:20–cv–03356. On 

November 19, 2020, the United States 

filed a Complaint alleging that the 

certain of Defendant’s, the National 

Association of REALTORS® (‘‘NAR’’), 

rules, policies, and practices 

promulgated by NAR resulted in a 

lessening of competition among real 

estate brokers and agents to the 

detriment of American home buyers in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. The proposed Final 

Judgment, filed at the same time as the 

Complaint, is designed to remedy the 

anticompetitive effects alleged in the 

Complaint. Under the proposed Final 

Judgment, NAR is required to repeal, 

eliminate, or modify its rules, practices, 

and policies that the Division alleges in 

the Complaint violate the Sherman Act. 

Specifically, NAR and NAR-affiliated 

multi-listing services (‘‘MLSs’’) must not 

(1) adopt, maintain, or enforce any rule, 

practice, or policy or (2) enter into any 

agreement or practice that directly or 

indirectly: 

a. Prohibits, discourages, or 

recommends against an MLS or real 

estate broker or agent working with a 

NAR-affiliated MLS (‘‘MLS Participant 1

or REALTOR®’’) publishing or 

displaying to consumers any MLS data 

specifying the compensation offered to 

other MLS Participants, such as buyer 

brokers; 

b. permits or requires MLS 

Participants, including buyer brokers, to 

represent or suggest that their services 

are free or available to a home buyer at 

no cost to the home buyer; 

c. permits or enables MLS 

Participants to filter, suppress, hide, or 

not display or distribute MLS listings 

based on the level of compensation 

offered to the buyer broker or the name 

of the brokerage or brokers or agents; or 

d. prohibits, discourages, or 

recommends against allowing any 

licensed real estate broker or agent to 

access, with approval from the home 

seller, the lockboxes of properties listed 

on an MLS. 

As discussed in further detail in the 

Competitive Impact Statement, the 

proposed Final Judgement also requires 

NAR to take affirmative steps to remedy 

the competitive harm alleged in the 

Complaint by requiring adopting new 

rules, the content of which must be 

approved by the United States that 

effectuates the foregoing prohibitions. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

http://www.justice.gov/atr and at the 

Office of the Clerk of the United States 

District Court for the District of 

Columbia. Copies of these materials may 

be obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, including the name of the 

submitter, and responses thereto, will be 

posted on the Antitrust Division’s 

website, filed with the Court, and, under 

certain circumstances, published in the 

Federal Register. Comments should be 

directed to Chief, Media, Entertainment 

and Professional Services Section, 

Antitrust Division, Department of 

Justice, 450 Fifth Street NW, Suite 4000, 

Washington, DC 20530 (telephone: 202– 

616–5935). 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

United States District Court for the 

District of Columbia 

United States of America, Department of 

Justice, Antitrust Division, 450 Fifth Street 

NW, Suite 4000, Washington, DC 20530, 

Plaintiff, v. National Association of 

Realtors®, 430 North Michigan Ave., Chicago, 

IL 60611, Defendant. 

Case No. 1:20–cv–3356–TJK 

Complaint 

The United States of America brings 

this civil antitrust action to obtain 

equitable relief against Defendant 

National Association of REALTORS®. 

The United States alleges as follows: 

I. Nature of the Action 

1. Defendant National Association of 

REALTORS® (‘‘NAR’’) has adopted a 

series of rules, policies, and practices 

governing, among other things, the 

publication and marketing of real estate, 

real estate broker commissions, as well 

as real estate broker access to lockboxes, 

that have been widely adopted by 

NAR’s members resulting in a lessening 

of competition among real estate brokers 

to the detriment of American home 

buyers. These NAR rules, policies, and 

practices include: 

(a) Prohibiting NAR-affiliated 

multiple-listing services (‘‘MLSs’’) from 

disclosing to prospective buyers the 

amount of commission that the buyer 

broker will earn if the buyer purchases 

a home listed on the MLS; 

(b) allowing buyer brokers to 

misrepresent to buyers that a buyer 

broker’s services are free; 

(c) enabling buyer brokers to filter 

MLS listings based on the level of buyer 

broker commissions offered and to 

exclude homes with lower commissions 


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from consideration by potential home 

buyers; and 

(d) limiting access to the lockboxes 

that provide licensed brokers with 

physical access to a home that is for sale 

to only brokers who are members of a 

NAR-affiliated MLS. 

2. These NAR rules, policies, and 

practices have been widely adopted and 

enforced by NAR-affiliated MLSs, and 

are, therefore, agreements among 

competing real estate brokers each of 

which reduce price competition among 

brokers and lead to lower quality service 

for American home buyers and sellers. 

Together, the agreements also have a 

cumulative anticompetitive effect. The 

agreements individually and 

collectively unreasonably restrain trade 

in violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1, and should be 

enjoined. 

3. Accordingly, the United States 

seeks an order requiring NAR to cease 

its activities with respect to these rules, 

policies, and practices and providing 

additional relief. 

II. Jurisdiction and Venue 

4. NAR is engaged in interstate 

commerce and in activities substantially 

affecting interstate commerce. NAR 

transacts business throughout the 

United States. NAR’s membership 

includes brokers and agents that 

conduct business across the United 

States in the local areas in which each 

member operates. NAR’s rules, policies, 

and practices govern the conduct of its 

members in all 50 states, including the 

conduct of all of NAR’s individual 

member brokers and their affiliated 

agents and sales associates 

(‘‘REALTORS®’’). The anticompetitive 

rules, policies, and practices alleged in 

this Complaint violate the Sherman Act 

and affect home buyers and sellers 

located throughout the United States. 

The Court has subject matter 

jurisdiction under Section 4 of the 

Sherman Act, 15 U.S.C. 4, to prevent 

and restrain NAR from violating Section 

1 of the Sherman Act, 15 U.S.C. 1. 

5. NAR has consented to venue and 

personal jurisdiction in this District. 

Venue is also proper in this judicial 

district under 28 U.S.C. 1391(b)(1). 

III. The Defendant 

6. NAR is a trade association 

organized under the laws of Illinois 

with its principal place of business in 

Chicago. It is the leading national trade 

association of real estate brokers and 

agents. Among its members are licensed 

residential real estate brokers, including 

brokers who provide real estate 

brokerage services to home sellers 

(‘‘listing brokers’’), home buyers (‘‘buyer 

brokers’’), or both (collectively 

‘‘residential brokers’’). 

IV. Industry Background 

7. Among other activities, NAR 

establishes and enforces rules, policies, 

and practices, that are adopted by 

NAR’s 1,400+ local associations (also 

called ‘‘Member Boards’’) and their 

affiliated MLSs that govern the conduct 

of NAR’s approximately 1.4 millionmember REALTORS® who are engaged 

in residential real estate brokerages 

across the United States. 

8. The real estate brokerage business 

by its nature tends to be local. Most 

buyers and sellers prefer to work with 

a broker who is familiar with local 

market conditions. As a result, NAR’s 

member brokers and agents compete 

with one another in local listing broker 

and buyer broker service markets to 

provide real estate brokerage services to 

home sellers and home buyers. 

9. MLSs are joint ventures among 

competing brokers to facilitate the 

publishing and sharing of information 

about homes for sale in a geographic 

area. The membership of an MLS is 

generally comprised of nearly all 

residential real estate brokers and their 

affiliated agents in an MLS’s service 

area. The geographic coverage of the 

MLS serving an area normally 

establishes the geographic market in 

which competition among brokers 

occurs, although meaningful 

competition among brokers may also 

occur in smaller areas, like a particular 

area of a city, in which case that smaller 

area may also be a relevant geographic 

market. 

10. In each area an MLS serves, the 

MLS will include or ‘‘list’’ the vast 

majority of homes that are for sale 

through a residential real estate broker 

in that area. In most areas, the local 

MLS provides the most up-to-date, 

accurate, and comprehensive 

compilation of the area’s home listings. 

Listing brokers will use the MLS to 

market sellers’ properties to other broker 

and agent participants in the MLS and, 

through those other brokers and agents, 

to potential home buyers. By virtue of 

nearly industry-wide participation and 

control over important data, brokers 

offering MLSs possess and exercise 

market power in the markets for the 

provision of real estate brokerage 

services to home buyers and sellers in 

local markets throughout the country. 

11. NAR, through its Member Boards, 

controls a substantial number of the 

MLSs in the United States. NAR 

promulgates rules, policies, and 

practices governing the conduct of NARaffiliated MLSs that are set forth 

annually in the Handbook on Multiple 

Listing Policy (‘‘Handbook’’). Under the 

terms of the Handbook, affiliated 

REALTOR® associations and MLSs 

‘‘must conform their governing 

documents to the mandatory MLS 

policies established by [NAR’s] Board of 

Directors to ensure continued status as 

member boards and to ensure coverage 

under the master professional liability 

insurance program.’’ National 

Association of REALTORS®, Handbook 

on Multiple Listing Policy 2020 (32nd 

ed. 2020), at iii. 

12. NAR and its affiliated REALTOR®

associations and MLSs enforce the 

Handbook’s rules, policies, and 

practices as well as the rules, policies, 

and practices codified in NAR’s Code of 

Ethics. NAR’s Code of Ethics states that 

‘‘[a]ny Member Board which shall 

neglect or refuse to maintain and 

enforce the Code of Ethics with respect 

to the business activities of its members 

may, after due notice and opportunity 

for hearing, be expelled by the Board of 

Directors from membership in the 

National Association.’’ National 

Association of REALTORS®, Procedures 

for Consideration of Alleged Violations 

of Article IV, Section 2, Bylaws. 

V. The Unlawful Agreements 

13. NAR’s Handbook and NAR’s Code 

of Ethics impose certain rules, policies, 

and practices on NAR-affiliated MLSs 

that affect competition for the provision 

of buyer broker services among those 

participating in a given MLS. In 

addition, some MLSs employ certain 

practices that are not directly required 

by a NAR rule or policy, but that 

similarly affect competition for the 

provision of buyer broker services 

among those participating in an MLS. 

14. These rules, policies, and 

practices include: Prohibiting an MLS 

from disclosing to prospective buyers 

the amount of commission that the 

buyer broker will earn if the buyer 

purchases a home listed on the MLS 

(‘‘NAR’s Commission Concealment 

Rules’’); allowing buyer brokers to 

mislead buyers into thinking that buyer 

broker services are free (‘‘NAR’s FreeService Rule’’); enabling buyer brokers 

to filter MLS listings based on the level 

of buyer broker commissions offered 

and to exclude homes with lower 

commissions from consideration by 

potential home buyers (‘‘NAR’s 

Commission-Filter Rules and 

Practices’’); and limiting access to 

lockboxes that provide licensed brokers 

physical access to a home that is for sale 

to only those real estate brokers who are 

members of a NAR-affiliated MLS 

(‘‘NAR’s Lockbox Policy’’). 

15. NAR’s and its affiliated MLSs’ 

adoption and enforcement of these 


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rules, policies, and practices which are 

described in more detail below, reflect 

concerted action between horizontal 

competitors and constitute agreements 

among competing real estate brokers 

that reduce price competition among 

brokers and lead to higher prices and 

lower quality service for American 

home buyers and sellers. 

A. NAR’s Commission-Concealment

Rules

16. NAR’s Commission-Concealment

Rules recommend that MLSs prohibit 

disclosing to prospective buyers the 

total commissions offered to buyer 

brokers. Such concealment likely leads 

to higher prices and lower quality for 

buyer broker services. All or nearly all 

of NAR-affiliated MLSs have adopted a 

prohibition on disclosing commissions 

offered to buyer brokers. This means 

that while buyer brokers can see the 

commission that is being offered to 

them if their home buyer purchases a 

specific property—a commission that 

will ultimately be paid through the 

home purchase price that the home 

buyer, represented by the buyer broker, 

pays—MLSs conceal this fee from home 

buyers. 

17. The Commission-Concealment

Rules are laid out in several places in 

NAR’s Handbook, including Policy 

Statement 7.58, Policy Statement 7.23, 

Policy Statement 7.3; Section IV.1.a of 

the Virtual Office websites Policy; and 

Sections 18.3.1 and 19.15 of the Model 

MLS Rules. 

18. NAR’s Commission-Concealment

Rules relieve buyer brokers from the 

necessity of competing against each 

other by offering rebates or offering to 

accept lower commissions. NAR’s 

Commission-Concealment Rules also 

make home buyers both less likely and 

less able to negotiate a discount or 

rebate off the offered commission. 

Finally, NAR’s CommissionConcealment Rules encourage and 

perpetuate the setting of persistently 

high commission offers by sellers and 

their listing agents. The result is higher 

prices for buyer broker services. 

19. Buyer brokers may, in fact, steer

potential home buyers away from 

properties with low commission offers 

by filtering out, failing to show, or 

denigrating homes listed for sale that 

offer lower commissions than other 

properties in the area. When buyers 

cannot see commission offers, they 

cannot detect or resist this type of 

steering. Steering not only results in 

higher prices for buyer broker services, 

it also reduces the quality of the services 

that are rendered to the potential home 

buyer, making it less likely that the 

buyer will ultimately be matched with 

the optimal home choice. Fear of having 

buyers steered away from a property is 

also a strong deterrent to sellers who 

would otherwise offer lower buyer 

broker commissions, which further 

contributes to higher prices for buyer 

broker services. 

B. NAR’s Free-Service Rule

20. Because commissions are offered

by home sellers, and buyers do not pay 

their buyer brokers directly, it can be 

difficult for buyers to appreciate that 

they are nevertheless sharing with the 

seller the cost of the buyer broker’s 

services. NAR’s Free-Services Rule, 

which has been widely adopted by 

NAR-affiliated MLSs, compounds this 

problem by allowing buyer brokers to 

mislead buyers into thinking that the 

buyer broker’s services are free when 

they are not. Under the NAR Code of 

Ethics, ‘‘Unless they are receiving no 

compensation from any source for their 

time and service, REALTORS® may use 

the term ‘free’ and similar terms in their 

advertising and in other representations 

only if they clearly and conspicuously 

disclose: (1) By whom they are being, or 

expect to be, paid; (2) the amount of the 

payment or anticipated payment; (3) any 

condition associated with the payment, 

offered product or service, and; (4) any 

other terms relating to their 

compensation.’’ (See NAR Code of 

Ethics, Standard of Practice 12–1). 

21. NAR’s Free-Services Rule allows

brokers to mislead buyers by obscuring 

the fact that buyers have a stake in what 

their buyer brokers are being paid for 

their services. Buyer broker fees, though 

nominally paid by the home’s seller, are 

ultimately paid out of the funds from 

the purchase price of the house. If 

buyers are told that buyer broker 

services are ‘‘free,’’ buyers are less likely 

to think to negotiate a lower buyer 

broker commission or to view buyer 

broker rebate offers as attractive. In 

these ways, NAR’s Free-Services Rule 

likely leads to higher prices for services 

provided by buyer brokers. 

C. NAR’S Commission-Filter Rules and

Practices

22. NAR’s Commission-Filter Rules

and Practices allow buyer brokers to 

filter MLS listings that will be shown to 

buyers based on the level of buyer 

broker commissions offered. Once this 

filtering is performed, some MLSs 

further permit buyer brokers to 

affirmatively choose not to show certain 

homes to potential home buyers if the 

buyer broker will make less money 

because of lower commissions. Homes 

may be filtered out in this manner even 

if they otherwise meet the buyer’s home 

search criteria. For example, buyer 

brokers or agents may use an MLS’s 

software to filter out any listing where 

a buyer broker will receive less than 

2.5% commission on the home sale. The 

buyer broker would then provide to its 

home buyer customer only those listings 

where the buyer broker would be paid 

a 2.5% commission or more if the home 

sale is completed. 

23. According to Policy Statement

7.58 of NAR’s Handbook, for example, 

‘‘Participants may select the IDX listings 

they choose to display based only on 

objective criteria including . . . 

cooperative compensation offered by 

listing brokers.’’ Handbook, at 24 (Policy 

Statement 7.58); see also id. at 43 (VOW 

Policy) (‘‘A VOW may exclude listings 

from display based only on objective 

criteria, including . . . cooperative 

compensation offered by listing broker, 

or whether the listing broker is a 

Realtor®.’’). 

24. NAR’s Commission-Filter Rules

and Practices, which have been widely 

adopted by NAR-affiliated MLSs, 

facilitates steering by helping buyer 

brokers conceal from potential home 

buyers any property listings offering 

lower buyer broker commissions. As 

alleged above, the practice of steering 

buyers away from homes with lower 

buyer broker commissions likely 

reduces the quality of buyer broker 

services and raises prices for buyer 

broker services, both at the expense of 

home buyers. 

D. NAR’s Lockbox Policy

25. NAR and its members have also

adopted a policy and practice that limits 

access to lockboxes to only those real 

estate brokers who are members of a 

NAR-affiliated MLS. Lockboxes hold the 

keys to a house to allow brokers and 

potential buyers to access homes for 

sale, with permission from the selling 

home owner, while continuing to keep 

the homes secure. Such lockboxes are 

accessed by a real estate broker using a 

numerical code or digital Bluetooth®

‘key’ enabling the real estate broker to 

show buyers homes that are listed for 

sale. 

26. NAR and its affiliated MLSs have

adopted a series of rules (set forth in the 

NAR Handbook, Policy Statement 7.31) 

that limit access to lockboxes only to 

those real estate brokers that are 

members of NAR and subscribe to the 

NAR-affiliated MLS. Licensed, but nonNAR-affiliated brokers are not allowed 

to access the lockboxes, thereby 

depriving those brokers the ability to 

show homes listed for sale. This policy 

and practice effectively deprives 

licensed real estate brokers that are not 

members of NAR from accessing 

properties for sale to show potential 


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home buyers, thereby lessening 

competition for buyer broker services. 

VI. Violation of Section 1 of the 

Sherman Act 

27. NAR’s real estate broker members 

are direct competitors for the provision 

of listing-broker and buyer broker 

services. Through the rules, policies, 

and practices alleged above and 

challenged in this action, NAR has 

coordinated and enforced 

anticompetitive agreements, which have 

likely contributed to reduced price 

competition among buyer brokers and a 

lower quality of buyer broker services 

for home buyers. 

28. When adopted by NAR Member 

Boards, the NAR rules, policies, and 

practices alleged above and challenged 

in this action are horizontal agreements 

that govern and enforce the conduct of 

competing MLS brokers and agents that 

deny prospective home buyers access to 

relevant information resulting in higher 

prices and lower quality for buyer 

broker services. 

29. The NAR rules, policies, and 

practices alleged above and challenged 

in this action have an anticompetitive 

effect in the relevant markets and 

unreasonably restrain trade in violation 

of Section 1 of the Sherman Act, 15 

U.S.C. 1. 

VII. Requested Relief 

30. The United States requests that 

this Court: 

(a) Adjudge that the NAR rules, 

policies, and practices challenged in 

this action are unreasonable restraints of 

trade and interstate commerce, in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1; 

(b) enjoin and restrain NAR from 

promulgating, enforcing, or adhering to 

any rules, policies, or practices that 

unreasonably restrict competition; 

(c) permanently enjoin and restrain 

NAR from establishing the same or 

similar rules, policies, or practices as 

those challenged in this action in the 

future, except as prescribed by the 

Court; 

(d) award the United States such other 

relief as the Court may deem just and 

proper to redress and prevent 

recurrence of the alleged violations and 

to dissipate the anticompetitive effects 

of the illegal agreements entered into by 

NAR; and 

(e) award the United States the costs 

of this action. 

Respectfully submitted, 

COUNSEL FOR PLAINTIFF UNITED 

STATES 

Dated: November 19, 2020 

/s/ lllllllllllllllllll

Makan Delrahim (D.C. Bar #457795) 

Assistant Attorney General, Antitrust 

Division. 

/s/ lllllllllllllllllll

Michael F. Murray (D.C. Bar #1001680) 

Deputy Assistant Attorney General. 

/s/ lllllllllllllllllll

Owen M. Kendler 

Chief. 

/s/ lllllllllllllllllll

Lisa A. Scanlon 

Assistant Chief, Media, Entertainment, and 

Professional Services Section, U.S. DOJ, 

Antitrust Division, 450 Fifth St. NW, Suite 

4000, Washington, DC 20001, Tel. 

202.305.8376, owen.kendler@usdoj.gov, 

lisa.scanlon@usdoj.gov. 

/s/ lllllllllllllllllll

Samer M. Musallam* (DC Bar # 986077) 

U.S. Department of Justice, Antitrust 

Division, 950 Pennsylvania Ave. NW, Suite 

3110, Washington, DC 20530, Tel. 

202.598.2990, Fax: 202.514.9033, 

samer.musallam@usdoj.gov. 

Attorneys for the United States 

* Lead Attorney to be Noticed 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

National Association of Realtors®, 

Defendant. 

Case No. 1:20–cv–3356–TJK 

[Proposed] Final Judgment 

Whereas, Plaintiff, United States of 

America, filed its Complaint on 

November 19, 2020, alleging that 

Defendant, National Association of 

REALTORS®, violated Section 1 of the 

Sherman Act, 15 U.S.C. 1, 

And whereas, the United States and 

Defendant have consented to the entry 

of this Final Judgment without the 

taking of testimony, without trial or 

adjudication of any issue of fact or law, 

without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law, and without 

Defendant admitting liability, 

wrongdoing, or the truth of any 

allegations in the Complaint; 

And whereas, Defendant agrees to 

undertake certain actions and refrain 

from certain conduct for the purpose of 

remedying the anticompetitive effects 

alleged in the Complaint; 

Now therefore, it is ordered, adjudged, 

and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against Defendant under Section 1 of the 

Sherman Act, as amended, 15 U.S.C. 1. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘NAR’’ and ‘‘Defendant’’ mean the 

National Association of REALTORS®, a 

non-profit trade association with its 

headquarters in Chicago, Illinois, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

B. ‘‘Agreement’’ means any 

agreement, understanding, pact, 

contract, or arrangement, formal or 

informal, oral or written, between two 

or more Persons. 

C. ‘‘Broker’’ means a Person licensed 

by a state to provide services to a buyer 

(‘‘buyer Broker’’) or seller (‘‘listing 

Broker’’) in connection with a real estate 

transaction. The term includes any 

Person who possesses a Broker’s license 

and any agent or sales associate who is 

affiliated with such a Broker. 

D. ‘‘Client’’ means the person(s) with 

whom a REALTOR® is contracted with 

or otherwise has an agency or legally 

recognized non-agency relationship 

with respect to the purchase or sale of 

real property. 

E. ‘‘Management’’ means NAR’s 

President, President Elect, First Vice 

President, Treasurer, VP of Advocacy, 

VP of Association Affairs, Chief 

Executive Officer, and Executive 

Committee. 

F. ‘‘Member Board’’ means any state 

or local Board of REALTORS® or 

Association of REALTORS®, including 

any city, county, inter-county, or interstate Board or Association, and any 

multiple listing service owned by, or 

affiliated with, any such Board of 

REALTORS® or Association of 

REALTORS®. 

G. ‘‘MLS Participant’’ means a 

member or user of, a participant in, or 

a subscriber to an MLS. 

H. ‘‘MLS’’ means a multiple-listing 

service owned or controlled by a 

Member Board. 

I. ‘‘Person’’ means any natural person, 

trade association, corporation, company, 

partnership, joint venture, firm, 

association, proprietorship, agency, 

board, authority, commission, office, or 

other business or legal entity, whether 

private or governmental. 

J. ‘‘Rule’’ means any final rule, model 

rule, ethical rule, bylaw, policy, 

definition, standard, or guideline, and 

any interpretation of any Rule issued or 

approved by NAR. 

III. Applicability 

A. This Final Judgment applies to 

NAR, as defined above, and all other 

Persons, including all Member Boards 

and MLS Participants, in active concert 

or participation with NAR who receive 

actual notice of this Final Judgment. A 


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Member Board or MLS Participant shall 

not be deemed to be in active concert 

with NAR solely as a consequence of its 

receipt of actual notice of this Final 

Judgment or its affiliation with or 

membership in NAR. 

IV. Prohibited Conduct 

NAR and its Member Boards must not 

adopt, maintain, or enforce any Rule, or 

enter into or enforce any Agreement or 

practice, that directly or indirectly: 

1. Prohibits, discourages, or 

recommends against an MLS or MLS 

Participant publishing or displaying to 

consumers any MLS database field 

specifying the compensation offered to 

other MLS Participants; 

2. permits or requires MLS 

Participants, including buyer Brokers, to 

represent or suggest that their services 

are free or available to a Client at no cost 

to the Client; 

3. permits or enables MLS 

Participants to filter, suppress, hide, or 

not display or distribute MLS listings 

based on the level of compensation 

offered to the buyer Broker or the name 

of the brokerage or agent; or 

4. prohibits, discourages, or 

recommends against the eligibility of 

any licensed real estate agent or agent of 

a Broker, from accessing, with seller 

approval, the lockboxes of those 

properties listed on an MLS. 

V. Required Conduct 

A. By not later than 45 calendar days 

after entry of the Stipulation and Order 

in this matter, NAR must submit to the 

United States, for the United States’ 

approval in its sole discretion, any Rule 

changes that NAR proposes to adopt to 

comply with Paragraphs V.C–I of this 

Final Judgment. 

B. By not later than thirty calendar 

days after entry of the Stipulation and 

Order in this matter, NAR must furnish 

notice of this action to all its Member 

Boards and MLS Participants in a form 

to be approved by the United States in 

its sole discretion. 

C. By not later than five business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must adopt 

one or more Rules, the content of which 

must first have been approved in 

writing by the United States in its sole 

discretion, that repeal any Rule that 

prohibits, discourages, or recommends 

against an MLS or MLS Participant 

publishing or displaying to consumers 

any MLS database field specifying 

compensation offered to other MLS 

Participants. 

D. By not later than five business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must adopt 

one or more Rules, the content of which 

must first have been approved in 

writing by the United States in its sole 

discretion that require all Member 

Boards and MLSs to repeal any Rule 

that prohibits, discourages, or 

recommends against an MLS or MLS 

Participant publishing or displaying to 

consumers any MLS database field 

specifying compensation offered to 

other MLS Participants. 

E. By not later than five business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must adopt 

one or more Rules, the content of which 

must first have been approved in 

writing by the United States in its sole 

discretion, that require all MLS 

Participants to provide to Clients 

information about the amount of 

compensation offered to other MLS 

Participants. 

F. By not later than five business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must adopt 

one or more Rules, the content of which 

must first have been approved in 

writing by the United States in its sole 

discretion, that: 

1. Repeal any Rule that permits all 

MLSs and MLS Participants, including 

buyer Brokers, to represent that their 

services are free or available at no cost 

to their Clients; 

2. require all Member Boards and 

MLSs to repeal any Rule that permits 

MLSs and MLS Participants, including 

buyer Brokers, to represent that their 

services are free or available at no cost 

to their Clients; and 

3. prohibit all MLSs and MLS 

Participants, including buyer Brokers, 

from representing that their services are 

free or available at no cost to their 

Clients. 

G. By not later than five business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must adopt 

one or more Rules, the content of which 

must first have been approved in 

writing by the United States in its sole 

discretion, that require all Member 

Boards and MLSs to: 

1. Prohibit MLS Participants from 

filtering or restricting MLS listings that 

are searchable by or displayed to 

consumers based on the level of 

compensation offered to the buyer 

Broker or the name of the brokerage or 

agent; and 

2. repeal any Rule that permits or 

enables MLS Participants to filter or 

restrict MLS listings that are searchable 

by or displayed to consumers based on 

the level of compensation offered to the 

buyer Broker, or by the name of the 

brokerage or agent. 

H. By not later than five business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must adopt 

one or more Rules, the content of which 

must first have been approved in 

writing by the United States in its sole 

discretion, that require all Member 

Boards and MLSs to allow any licensed 

real estate agent or agent of a Broker, to 

access, with seller approval, the 

lockboxes of those properties listed on 

an MLS. 

I. By not later than 10 business days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must 

furnish notice of this action to all its 

Member Boards and MLS Participants 

through (i) a direct communication, in 

a form to be approved by the United 

States in its sole discretion, that must 

contain this Final Judgment; the new 

Rule or Rules NAR devises in 

compliance with Paragraphs V.E., V.H., 

and V.I; and the Competitive Impact 

Statement; and (ii) the creation and 

maintenance of a page on NAR’s 

website, that must be posted for no less 

than one year after the date of entry of 

this Final Judgment, and must contain 

links to this Final Judgment; the new 

Rule or Rules NAR devises in 

compliance with Section V; the 

Competitive Impact Statement; and the 

Complaint in this matter. 

J. By not later than 30 calendar days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must 

publish to all Member Boards, in a 

manner subject to approval by the 

United States in its sole discretion, this 

Final Judgment and the NAR Rules 

adopted in compliance with Section V. 

K. By not later than 60 calendar days 

after the later of the entry of this Final 

Judgment or the United States’ approval 

of the Rules proposed in Paragraph V.A 

of this Final Judgment, NAR must 

require all Member Boards to publish, in 

a manner subject to approval by the 

United States in its sole discretion, to all 

MLS Participants this Final Judgment 

and the NAR Rules adopted in 

compliance with Section V. 

L. The United States, in its sole 

discretion, may agree to one or more 


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extensions of each of the time periods 

set forth in this Section V. 

VI. Antitrust Compliance 

A. By not later than 30 calendar days 

after entry of the Stipulation and Order 

in this matter, Defendant must (i) 

appoint an Antitrust Compliance Officer 

and (ii) identify to the United States the 

Antitrust Compliance Officer’s name, 

business address, telephone number, 

and email address. Within thirty days 

after the Antitrust Compliance Officer 

position becomes vacant, the Defendant 

must (i) appoint a replacement Antitrust 

Compliance Officer and (ii) must 

identify to the United States the 

replacement Antitrust Compliance 

Officer’s name, business address, 

telephone number, and email address. 

The Defendant’s initial appointment 

and replacement of an Antitrust 

Compliance Officer is subject to the 

approval of the United States in its sole 

discretion. 

B. The Antitrust Compliance Officer 

must: 

1. By not later than 30 calendar days 

after entry of this Final Judgment, 

furnish to all of Management a copy of 

this Final Judgment, the Competitive 

Impact Statement filed by the United 

States in connection with this matter, 

and a cover letter in a form attached as 

Exhibit 1; 

2. by not later than 30 calendar days 

after entry of this Final Judgment, in a 

form and manner to be approved by the 

United States in its sole discretion, 

provide Management and employees 

with reasonable notice of the meaning 

and requirements of this Final 

Judgment; 

3. annually brief Management on the 

meaning and requirements of this Final 

Judgment and the antitrust laws; 

4. brief any person who succeeds a 

Person in any Management position on 

the meaning and requirements of this 

Final Judgment by not later than 30 

calendar days after such succession; 

5. obtain from all members of 

Management, by not later than 30 

calendar days after that Person’s receipt 

of this Final Judgment, a certification 

that the Person (i) has read and, to the 

best of his or her ability, understands 

and agrees to abide by the terms of this 

Final Judgment; (ii) has reported any 

violation of this Final Judgment to 

Defendant or is not aware of any 

violation of this Final Judgment that has 

not been reported to the Defendant; and 

(iii) understands that his or her failure 

to comply with this Final Judgment may 

result in an enforcement action for civil 

or criminal contempt of court against 

the Defendant and any other Person 

bound by the Final Judgment who 

violates this Final Judgment; 

6. maintain a record of certifications 

received pursuant to this Section and a 

copy of each certification; 

7. annually communicate to 

Management and employees that they 

must disclose to the Antitrust 

Compliance Officer information 

concerning any potential violation of 

this Final Judgment or the antitrust laws 

and that any such disclosure will be 

without reprisal by Defendant; and 

8. by not later than 90 calendar days 

after entry of this Final Judgment and 

annually thereafter, the Antitrust 

Compliance Officer must file reports 

with the United States describing that 

Defendant has met its obligations under 

this Paragraph. 

C. Immediately upon Management’s 

or the Antitrust Compliance Officer’s 

learning of any violation or potential 

violation of any of the terms of this 

Final Judgment, NAR must take 

appropriate action to investigate and, in 

the event of a potential violation, must 

cease or modify the activity so as to 

comply with this Final Judgment. NAR 

must maintain all documents related to 

any potential violation of this Final 

Judgment for the term of this Final 

Judgment. 

D. Within 30 calendar days of 

Management’s or the Antitrust 

Compliance Officer’s learning of any 

potential violation of any of the terms of 

this Final Judgment, Defendant must file 

with the United States a statement 

describing the potential violation, 

including a description of (1) any 

communications constituting the 

potential violation, the date and place of 

the communication, the persons 

involved in the communication, and the 

subject matter of the communication, 

and (2) all steps taken by the Antitrust 

Compliance Officer or Management to 

remedy the potential violation. 

E. Defendant must have its CEO or 

CFO, and its General Counsel certify in 

writing to the United States, no later 

than 60 calendar days after the Final 

Judgement is entered and then annually 

on the anniversary of the date of the 

entry of this Final Judgment, that the 

Defendant has complied with the 

provisions of this Final Judgment. 

F. The United States, in its sole 

discretion, may agree to one or more 

extensions of each of the time periods 

set forth in this Section VI. 

VII. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment or of related orders such as 

the Stipulation and Order or of 

determining whether this Final 

Judgment should be modified or 

vacated, upon written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, and reasonable 

notice to Defendant, Defendant must 

permit, from time to time and subject to 

legally recognized privileges, authorized 

representatives, including agents 

retained by the United States: 

1. To have access during Defendant’s 

office hours to inspect and copy, or at 

the option of the United States, to 

require Defendant to provide electronic 

copies of, all books, ledgers, accounts, 

records, data, and documents in the 

possession, custody, or control of 

Defendant, relating to any matters 

contained in this Final Judgment; and 

2. to interview, either informally or on 

the record, Defendant’s officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

must be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

Defendant. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, Defendant must 

submit written reports or respond to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment. 

C. No information or documents 

obtained pursuant to this Section VII 

may be divulged by the United States to 

any person other than an authorized 

representative of the executive branch of 

the United States, except in the course 

of legal proceedings to which the United 

States is a party, including grand jury 

proceedings, for the purpose of securing 

compliance with this Final Judgment, or 

as otherwise required by law. 

D. If a third party requests disclosure 

of information under the Freedom of 

Information Act, 5 U.S.C. 552, the 

Antitrust Division will act in 

accordance with that statute, and the 

Department of Justice regulations at 28 

CFR part 16, including the provision on 

confidential commercial information, at 

28 CFR 16.7. Defendant submitting 

information to the Antitrust Division 

should designate the confidential 

commercial information portions of all 

applicable documents and information 

under 28 CFR 16.7. Designations of 

confidentiality expire ten years after 

submission, ‘‘unless the submitter 

requests and provides justification for a 

longer designation period.’’ See 28 CFR 

16.7(b). 

E. If at the time that Defendant 

furnishes information or documents to 

the United States pursuant to this 


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Section VII, Defendant represents and 

identifies in writing information or 

documents to which a claim of 

protection may be asserted under Rule 

26(c)(1)(G) of the Federal Rules of Civil 

Procedure, and Defendant marks each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

Rule 26(c)(1)(G) of the Federal Rules of 

Civil Procedure,’’ the United States 

must give Defendant ten calendar days’ 

notice before divulging such material in 

any legal proceeding, other than a grand 

jury proceeding. 

VIII. Retention of Jurisdiction 

The Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to the Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

IX. Enforcement of Final Judgment 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including the right to seek an order of 

contempt from the Court. Defendant 

agrees that in a civil contempt action, a 

motion to show cause, or a similar 

action brought by the United States 

regarding an alleged violation of this 

Final Judgment, the United States may 

establish a violation of this Final 

Judgment and the appropriateness of a 

remedy therefor by a preponderance of 

the evidence, and Defendant waives any 

argument that a different standard of 

proof should apply. 

B. This Final Judgment should be 

interpreted to give full effect to the 

procompetitive purposes of the antitrust 

laws and to restore the competition the 

United States alleged was harmed by the 

challenged conduct. Defendant agrees 

that it may be held in contempt of, and 

that the Court may enforce, any 

provision of this Final Judgment that, as 

interpreted by the Court in light of these 

procompetitive principles and applying 

ordinary tools of interpretation, is stated 

specifically and in reasonable detail, 

whether or not it is clear and 

unambiguous on its face. In any such 

interpretation, the terms of this Final 

Judgment should not be construed 

against either party as the drafter. 

C. In an enforcement proceeding in 

which the Court finds that Defendant 

has violated this Final Judgment, the 

United States may apply to the Court for 

a one-time extension of this Final 

Judgment, together with other relief that 

may be appropriate. In connection with 

any successful effort by the United 

States to enforce this Final Judgment 

against Defendant, whether litigated or 

resolved before litigation, Defendant 

agrees to reimburse the United States for 

the fees and expenses of its attorneys, as 

well as any other costs, including 

experts’ fees, incurred in connection 

with that enforcement effort, including 

in the investigation of the potential 

violation. 

D. For a period of four years following 

the expiration or termination of this 

Final Judgment, if the United States has 

evidence that Defendant violated this 

Final Judgment before it expired, the 

United States may file an action against 

Defendant in this Court requesting that 

the Court order: (1) Defendant to comply 

with the terms of this Final Judgment 

for an additional term of at least four 

years following the filing of the 

enforcement action, (2) all appropriate 

contempt remedies, (3) any additional 

relief needed to ensure the Defendant 

complies with the terms of this Final 

Judgment, and (4) fees or expenses as 

called for in this Section IX. 

X. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire 7 years 

from the date of its entry, except that 

after 5 years from the date of its entry, 

this Final Judgment may be terminated 

upon notice by the United States to the 

Court and Defendant that the 

continuation of this Final Judgment no 

longer is necessary or in the public 

interest. 

XI. United States’ Reservation of Rights 

Nothing in this Final Judgment shall 

limit the right of the United States to 

investigate and bring actions to prevent 

or restrain violations of the antitrust 

laws concerning any Rule or practice 

adopted or enforced by NAR or any of 

its Member Boards. 

XII. Notice 

For purposes of this Final Judgment, 

any notice or other communication 

required to be provided to the United 

States must be sent to the person at the 

address set forth below (or such other 

address as the United States may specify 

in writing to Defendant): Chief, Office of 

Decree Enforcement and Compliance, 

Antitrust Division, U.S. Department of 

Justice, 950 Pennsylvania Avenue NW, 

Washington, DC 20530. 

XIII. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including by making 

available to the public copies of this 

Final Judgment and the Competitive 

Impact Statement, any public comments 

thereon, and any response to comments 

by the United States. Based upon the 

record before the Court, which includes 

the Competitive Impact Statement and 

any comments and response to 

comments filed with the Court, entry of 

this Final Judgment is in the public 

interest. 

[Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16] 

llllllllllllllllllll

United States District Judge 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

National Association of Realtors®, 

Defendant. 

Case No. 1:20–cv–03356–TJK 

Competitive Impact Statement 

Plaintiff United States of America 

(‘‘United States’’), pursuant to Section 

2(b) of the Antitrust Procedures and 

Penalties Act, 15 U.S.C. §1A16(b)–(h) 

(‘‘APPA’’ or ‘‘Tunney Act’’), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

On November 19, 2020, the United 

States filed a civil antitrust Complaint 

against Defendant National Association 

of REALTORS® (‘‘NAR’’) alleging that a 

series of rules, policies, and practices 

promulgated by NAR resulted in a 

lessening of competition among real 

estate brokers and agents to the 

detriment of American home buyers in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. [Dkt. No. 1.] 

The Complaint alleges that certain 

NAR rules, policies, and practices have 

been widely adopted by NAR’s 

members, including the multiple listing 

services (‘‘MLSs’’) affiliated with NAR 

that facilitate the publishing and sharing 

of information about local homes for 

sale, resulting in a lessening of 

competition among real estate brokers 

and agents to the detriment of American 

home buyers. These NAR rules, policies, 

and practices include those that: 

a. Prohibit MLSs affiliated with NAR 

from disclosing to potential home 

buyers the amount of commission that 

the buyer’s real estate broker or agent 

will earn if the buyer purchases a home 

listed on the MLS; 

b. allow brokers for home sellers 

(‘‘buyer brokers’’) to misrepresent to 

potential home buyers that a buyer 

broker’s services are free; 


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81496 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Notices 

2Under the proposed Final Judgment, an ‘‘MLS 

Participant’’ is defined as ‘‘a member or user of, a 

participant in, or a subscriber to an MLS.’’ (See 

Proposed Final Judgment, Section II—Definitions.) 

3Available at cdnr.nar.realtor/sites/default/files/ 

document/NAR-HMLP-2020-v2.pdf. (Last visited on 

12/2/2020). 

4Available at https://www.nar.realtor/about-nar/ 

governing-documents/code-of-ethics/duty-to-adoptand-enforce-the-code-of-ethics#:∼:text=Any%20

Member%20Board%20which%20shall, 

membership%20in%20the

%20National%20Association. (Last visited on 12/2/ 

2020). 

c. enable buyer brokers to filter the 

listings of homes for sale via an MLS 

based on the level of buyer broker 

commissions offered and exclude homes 

with lower commissions from 

consideration by potential home buyers; 

and 

d. limit access to lockboxes, which 

provide physical access to homes for 

sale, only to real estate brokers or agents 

working with a NAR-affiliated MLS. 

At the same time the Complaint was 

filed, the United States filed a 

Stipulation and Order and proposed 

Final Judgment, which are designed to 

remedy the anticompetitive effects 

alleged in the Complaint. [Dkt. No. 4.] 

On November 20, 2020, the Court 

entered the Stipulation and Order. [Dkt. 

No. 5.] 

Under the proposed Final Judgment, 

NAR is required to repeal, eliminate, or 

modify its rules, practices, and policies 

that the Division alleges in the 

Complaint violate the Sherman Act. 

Specifically, NAR and NAR-affiliated 

MLSs must not (1) adopt, maintain, or 

enforce any rule, practice, or policy or 

(2) enter into any agreement or practice 

that directly or indirectly: 

e. Prohibits, discourages, or 

recommends against an MLS or real 

estate broker or agent working with a 

NAR-affiliated MLS (‘‘MLS Participant 2

or REALTOR®’’) publishing or 

displaying to consumers any MLS data 

specifying the compensation offered to 

other MLS Participants, such as buyer 

brokers; 

f. permits or requires MLS 

Participants, including buyer brokers, to 

represent or suggest that their services 

are free or available to a home buyer at 

no cost to the home buyer; 

g. permits or enables MLS 

Participants to filter, suppress, hide, or 

not display or distribute MLS listings 

based on the level of compensation 

offered to the buyer broker or the name 

of the brokerage or brokers or agents; or 

h. prohibits, discourages, or 

recommends against allowing any 

licensed real estate broker or agent to 

access, with approval from the home 

seller, the lockboxes of properties listed 

on an MLS. 

As discussed in further detail below, 

the proposed Final Judgment requires 

NAR to take affirmative steps to remedy 

the competitive harm alleged in the 

Complaint. The Stipulation and Order 

requires NAR to abide by and comply 

with the provisions of the proposed 

Final Judgment until the proposed Final 

Judgment is entered by the Court or 

until expiration of time for all appeals 

of any Court ruling declining entry of 

the proposed Final Judgment. [Dkt. No. 

5.] 

The United States and NAR have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment will terminate 

this action, except that the Court will 

retain jurisdiction to construe, modify, 

or enforce the provisions of the 

proposed Final Judgment and to punish 

violations thereof. [Dkt. No. 4–2.] 

II. Description of Events Giving Rise to 

the Alleged Violation 

A. The Defendant and Its Members 

Defendant NAR is a trade association 

organized under the laws of Illinois 

with its principal place of business in 

Chicago. NAR is the leading national 

trade association of real estate brokers 

and agents. Among NAR’s members are 

licensed residential real estate brokers, 

including brokers who provide real 

estate brokerage services to home 

sellers, home buyers, or both. 

Among other activities, NAR 

establishes and enforces rules, policies, 

and practices that are then adopted by 

NAR’s more than 1,400 local 

associations (also known as the 

‘‘Member Boards’’) and their affiliated 

MLSs. These rules, policies, and 

practices govern the conduct of the 

approximately 1.4 million MLS 

Participants or REALTORS® affiliated 

with NAR who are engaged in 

residential real estate brokerages across 

the United States. 

An MLS is a joint venture among 

competing brokers to facilitate the 

publishing and sharing of information 

about homes for sale in a geographic 

area. The membership of an MLS is 

generally comprised of nearly all 

residential real estate brokers and their 

affiliated agents in an MLS’s service 

area. In each area an MLS serves, the 

MLS will include or ‘‘list’’ the vast 

majority of homes that are for sale 

through a residential real estate broker 

in that area. In most areas, the local 

MLS provides the most up-to-date, 

accurate, and comprehensive 

compilation of the area’s home listings. 

Listing brokers use the MLS to market 

sellers’ properties to other broker and 

agent participants in the MLS and, 

through those other brokers and agents, 

to potential home buyers. By virtue of 

nearly industry-wide participation and 

control over important data, MLSs 

possess and exercise market power in 

the markets for the provision of real 

estate brokerage services to home buyers 

and sellers in local markets throughout 

the country. 

As alleged in the Complaint, NAR’s 

member brokers and agents compete 

with one another in local listing broker 

and buyer service markets to provide 

real estate brokerage services to home 

sellers and home buyers. The 

geographic coverage of the MLS serving 

an area normally establishes the 

geographic market in which competition 

among brokers occurs, although 

meaningful competition among brokers 

may also occur in smaller areas, like a 

particular area of a city, in which case 

that smaller area may also be a relevant 

geographic market. 

NAR, through its Member Boards, 

controls a substantial number of the 

MLSs in the United States. NAR 

promulgates rules, policies, and 

practices governing the conduct of NARaffiliated MLSs that are set forth 

annually in the Handbook on Multiple 

Listing Policy (‘‘Handbook’’). Under the 

terms of the Handbook, affiliated 

REALTOR® associations and MLSs 

‘‘must conform their governing 

documents to the mandatory MLS 

policies established by [NAR’s] Board of 

Directors to ensure continued status as 

member boards and to ensure coverage 

under the master professional liability 

insurance program.’’ (National 

Association of REALTORS®, Handbook 

on Multiple Listing Policy 2020 (32nd 

ed. 2020), at iii).3

NAR and its affiliated REALTOR®

associations and MLSs enforce the 

Handbook’s rules, policies, and 

practices as well as the rules, policies, 

and practices set forth in NAR’s Code of 

Ethics. NAR’s Code of Ethics states that 

‘‘[a]ny Member Board which shall 

neglect or refuse to maintain and 

enforce the Code of Ethics with respect 

to the business activities of its members 

may, after due notice and opportunity 

for hearing, be expelled by the Board of 

Directors from membership’’ in NAR. 

(National Association of REALTORS®, 

Procedures for Consideration of Alleged 

Violations of Article IV, Section 2, 

Bylaws).4

B. Description of the Challenged Rules, 

Policies, and Practices and Their 

Anticompetitive Effects 

NAR’s Handbook and NAR’s Code of 

Ethics impose certain rules, policies, 


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5Available at https://www.nar.realtor/about-nar/ 

governing-documents/code-of-ethics/2021-code-ofethics-standards-of-practice. (Last visited on 12/2/ 

2020). 

6Available at cdnr.nar.realtor/sites/default/files/ 

document/NAR-HMLP-2020-v2.pdf. (Last visited on 

12/2/2020). 

and practices on NAR-affiliated MLSs 

that affect competition for the provision 

of buyer broker services among those 

participating in a given MLS. In 

addition, some MLSs employ certain 

practices that are not directly required 

by a NAR rule or policy, but that 

similarly affect competition for the 

provision of buyer broker services 

among those participating in an MLS. 

These rules, policies, and practices, 

discussed in more detail below, include: 

prohibiting an MLS from disclosing to 

potential home buyers the amount of 

commission that the buyer broker will 

earn if the buyer purchases a home 

listed on the MLS (‘‘NAR’s Commission 

Concealment Rules’’); allowing buyer 

brokers to mislead potential home 

buyers into thinking that buyer broker 

services are free (‘‘NAR’s Free-Service 

Rule’’); enabling buyer brokers to filter 

MLS listings based on the level of buyer 

broker commissions offered and to 

exclude homes with lower commissions 

from consideration by potential home 

buyers (‘‘NAR’s Commission-Filter 

Rules and Practices’’); and limiting 

accesses to lockboxes that provide 

licensed brokers physical access to a 

home that is for sale to only those real 

estate brokers who are members of a 

NAR-affiliated MLS (‘‘NAR’s Lockbox 

Policy’’). 

These rules, policies, and practices 

constitute agreements that reduce price 

competition among brokers and lead to 

lower quality service for American 

home buyers and sellers. 

1. NAR’s Commission-Concealment 

Rules 

NAR’s Commission-Concealment 

Rules recommend that MLSs prohibit 

disclosing to potential home buyers the 

total commission offered to buyer 

brokers. All or nearly all of NARaffiliated MLSs have adopted a 

prohibition on disclosing commissions 

offered to buyer brokers. This means 

that while buyer brokers can see the 

commission that is being offered to 

them if their home buyer purchases a 

specific property—a commission that 

will ultimately be paid through the 

home purchase price that the home 

buyer, represented by the buyer broker, 

pays—MLSs conceal this fee from 

potential home buyers. 

NAR’s Commission-Concealment 

Rules lessen competition among buyer 

brokers by reducing their incentives to 

compete against each other by offering 

rebates. These rules also make potential 

home buyers both less likely and less 

able to negotiate a rebate off the offered 

commission. NAR’s CommissionConcealment Rules encourage and 

perpetuate the setting of persistently 

high commission offers by sellers and 

their listing agents. This contributes to 

higher prices for buyer broker services. 

As alleged in the Complaint, NAR’s 

Commission-Concealment Rules can 

also lead to other anticompetitive 

effects. Because of the CommissionConcealment Rules, buyer brokers may 

steer potential home buyers away from 

properties with low commission offers 

by filtering out, failing to show, or 

denigrating homes listed for sale that 

offer lower commissions than other 

properties in the area. When potential 

home buyers can’t see commission 

offers, they can’t detect or resist this 

type of steering. Steering not only 

results in higher prices for buyer broker 

services, it also reduces the quality of 

the services that are rendered to the 

potential home buyer, making it less 

likely that the buyer will ultimately be 

matched with the optimal home choice. 

Fear of having potential home buyers 

steered away from a property is a strong 

deterrent to sellers who would 

otherwise offer lower buyer broker 

commissions, which further contributes 

to higher prices for buyer broker 

services. 

2. NAR’s Free-Service Rule 

Because commissions are offered by 

home sellers—and home buyers do not 

pay their buyer brokers directly—it can 

be difficult for buyers to appreciate that 

they are nevertheless sharing with the 

seller the cost of the buyer broker’s 

services. NAR’s Free-Service Rule, 

which has been widely adopted by 

NAR-affiliated MLSs, compounds this 

problem by allowing buyer brokers to 

mislead buyers into thinking the buyer 

broker’s services are free and hide the 

fact that buyers have a stake in what 

their buyer brokers are being paid. 

Under NAR’s Code of Ethics, ‘‘Unless 

they are receiving no compensation 

from any source for their time and 

service, REALTORS® may use the term 

‘free’ and similar terms in their 

advertising and in other representations 

only if they clearly and conspicuously 

disclose: (1) By whom they are being, or 

expect to be, paid; (2) the amount of the 

payment or anticipated payment; (3) any 

condition associated with the payment, 

offered product or service, and; (4) any 

other terms relating to their 

compensation.’’ (NAR Code of Ethics, 

Standard of Practice 12–1.)5

Buyer broker fees, though nominally 

paid by the home’s seller, are ultimately 

paid out of the funds from the purchase 

price of the house. If potential home 

buyers are told that buyer broker 

services are ‘‘free,’’ buyers are less likely 

to think to negotiate a lower buyerbroker commission or to view the buyer 

broker rebate offers as attractive. In 

these ways, NAR’s Fee-Service Rule 

likely leads to higher prices for services 

provided by buyer brokers. 

3. NAR’s Commission-Filter Rules and 

Practices 

NAR’s Commission-Filter Rules and 

Practices allow buyer brokers to filter 

MLS listings that will be shown to 

potential home buyers based on the 

level of buyer broker commissions 

offered. Once this filtering is performed, 

some MLSs further permit buyer brokers 

to affirmatively choose not to show 

certain homes to potential home buyers 

if the buyer broker will make less 

money because of lower commissions. 

Homes may be filtered out in this 

manner even if they otherwise meet the 

buyer’s home search criteria. For 

example, buyer brokers or agents may 

use an MLS’s software to filter out any 

listing where buyer brokers will receive 

less than 2.5% commission on the home 

sale. The buyer broker would then 

provide to his home buyer customer 

only those listings where the buyer 

broker would be paid a 2.5% 

commission or more if the home sale is 

completed. 

According to Policy Statement 7.58 of 

NAR’s Handbook, for example, 

‘‘[p]articipants may select the IDX 

listings they choose to display based 

only on objective criteria including . . . 

cooperative compensation offered by 

listing brokers.’’ (Handbook, at 24, 

Policy Statement 7.58; see NAR’s VOW 

Policy, id. at 43 (‘‘A VOW may exclude 

listings from display based only on 

objective criteria, including . . . 

cooperative compensation offered by the 

listing broker, or whether the listing 

broker is a Realtor®.’’)) 6

NAR’s Commission-Filter Rules and 

Practices, which have been widely 

adopted by NAR-affiliated MLSs, are 

anticompetitive because they facilitate 

steering by helping buyer brokers 

conceal from potential home buyers any 

property listings offering lower buyer 

broker commissions. The practice of 

steering buyers away from homes with 

lower buyer broker commissions likely 

reduces the quality of buyer broker 

services and raises prices for buyer 

broker services, both at the expense of 

buyers. 


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7Available at cdnr.nar.realtor/sites/default/files/ 

document/NAR-HMLP-2020-v2.pdf. (Last visited on 

12/2/2020). 

4. NAR’s Lockbox Policy 

Lockboxes hold the keys to a house to 

allow brokers and potential home 

buyers to access homes for sale, with 

permission from the selling home 

owner, while continuing to keep the 

homes secure. Such lockboxes are 

typically accessed by a real estate broker 

using a numerical code or digital 

Bluetooth® ‘‘key’’ enabling the real 

estate broker to show buyer homes that 

are listed for sale. 

NAR and its affiliated MLSs have 

adopted a policy and practice that limits 

access to lockboxes to only those real 

estate brokers who are members of NAR 

and subscribe to the NAR-affiliated 

MLS. (See Handbook, Policy Statement 

7.31).7 Licensed, but non-NAR-affiliated 

brokers are not allowed to access the 

lockboxes. Because only real estate 

brokers that are members of NAR and 

subscribe to the NAR-affiliated MLS are 

permitted access to lockboxes, this 

policy and practice effectively deprives 

licensed real estate brokers that are not 

members of NAR from accessing 

properties for sale to show potential 

home buyers. This lessens competition 

for buyer broker services as real estate 

brokers that are not members of NAR 

cannot access lockboxes and show 

properties to their clients. 

C. The Challenged Rules, Policies, and 

Practices Violate the Antitrust Laws 

NAR’s challenged rules, policies and 

practices violate Section 1 of the 

Sherman Act, 15 U.S.C. 1, which 

prohibits unreasonable restraints on 

competition. NAR’s real estate broker 

members are direct competitors for the 

provision of listing broker and buyer 

broker services. NAR and its affiliated 

MLSs have widely adopted the 

challenged rules, policies, and practices. 

Adoption by NAR and its affiliated 

MLSs of these rules, policies, and 

practices reflects concerted action 

between horizontal competitors and 

constitutes agreements among 

competing real estate brokers that 

reduce price competition among brokers 

and lead to higher prices and a lower 

quality of service for American home 

buyers. See, e.g., Realcomp II, Ltd. v. 

FTC, 635 F.3d 815, 828–29 (6th Cir. 

2011) (holding that association of realestate brokers was a contract, 

combination, or conspiracy with respect 

to allegedly anticompetitive policies). 

When adopted by NAR Member 

Boards, the NAR rules, policies, and 

practices alleged above and challenged 

in this action are horizontal agreements 

that govern and enforce the conduct of 

competing MLS brokers and agents that 

deny potential home buyers access to 

relevant information resulting in higher 

prices and lower quality for buyer 

broker services. 

The NAR rules, policies, and practices 

challenged in this action have 

anticompetitive effects in the relevant 

market for local listing broker and buyer 

broker services in the United States that 

outweigh any purported procompetitive benefits. Accordingly, they 

unreasonably restrain trade in violation 

of Section 1 of the Sherman Act, 15 

U.S.C. 1. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment 

prohibits NAR and its Member Boards 

from undertaking certain conduct and 

affirmatively requires NAR to take 

certain actions to remedy the antitrust 

violations alleged in the Complaint. 

A. Prohibited and Required Conduct 

1. Commission-Concealment Rules 

Paragraph IV.1 of the proposed Final 

Judgment prohibits NAR and its 

Member Boards from adopting, 

maintaining, or enforcing any rule, or 

from entering into or enforcing any 

agreement or practice, that directly or 

indirectly ‘‘prohibits, discourages, or 

recommends against an MLS or MLS 

Participant publishing or displaying to 

consumers any MLS data specifying the 

compensation offered to other MLS 

Participants.’’ 

Paragraphs V.C.–E. of the proposed 

Final Judgment further require NAR to 

adopt new rules, the content of which 

must be approved by the United States, 

that: 

a. Repeal any rule that prohibits, 

discourages, or recommends against an 

MLS or MLS Participant publishing or 

displaying to consumers any MLS data 

specifying compensation offered to 

other MLS Participants; 

b. repeal any rule that prohibits, 

discourages, or recommends against an 

MLS or MLS Participant publishing or 

displaying to consumers any MLS data 

specifying compensation offered to 

other MLS Participants; or 

c. require all MLS Participants to 

provide to their clients with information 

about the amount of compensation 

offered to other MLS Participants. 

These provisions, as set forth in the 

proposed Final Judgment, are designed 

to resolve the competitive concerns 

related to NAR’s CommissionConcealment rules as alleged in the 

Complaint. 

2. Free-Service Rule 

Paragraph IV.2 of the proposed Final 

Judgment prohibits NAR and its 

Member Boards from adopting, 

maintaining, or enforcing any rule, or 

from entering into or enforcing any 

agreement, that directly or indirectly 

‘‘permits or requires MLS Participants, 

including buyer Brokers, to represent or 

suggest that their services are free or 

available to a Client at no cost to the 

Client.’’ 

Paragraph V.F. of the proposed Final 

Judgment further requires NAR to adopt 

new rules, the content of which must be 

approved by the United States, that: 

a. Repeals any rule that permits all 

MLSs and MLS Participants, including 

buyer Brokers, to represent that their 

services are free or available at no cost 

to their clients; 

b. requires all Member Boards and 

MLSs to repeal any rule that permits 

MLSs and MLS Participants, including 

buyer Brokers, to represent that their 

services are free or available at no cost 

to their clients; and 

c. prohibits all MLSs and MLS 

Participants, including buyer Brokers, 

from representing that their services are 

free or available at no cost to their 

clients. 

These provisions, as set forth in the 

proposed Final Judgment, are designed 

to resolve the competitive concerns with 

NAR’s Free-Service Rule as alleged in 

the Complaint. 

3. Commission-Filter Rules and 

Practices 

Paragraph IV.3 of the proposed Final 

Judgment prohibits NAR and its 

Member Boards from adopting, 

maintaining, or enforcing any rule, or 

from entering into or enforcing any 

agreement that directly or indirectly 

‘‘permits or enables MLS Participants to 

filter, suppress, hide, or not display or 

distribute MLS listings based on the 

level of compensation offered to the 

buyer Broker or the name of the 

brokerage or agent.’’ 

Paragraph V.G. of the proposed Final 

Judgment further requires NAR to adopt 

new rules, the content of which must be 

approved by the United States that: 

a. Prohibits MLS Participants from 

filtering or restricting MLS listings that 

are searchable by or displayed to 

consumers based on the level of 

compensation offered to the buyer 

Broker or the name of the brokerage or 

agent; and 

b. repeals any rule that permits or 

enables MLS Participants to filter or 

restrict MLS listings that are searchable 

by or displayed to consumers based on 

the level of compensation offered to the 


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buyer Broker, or by the name of the 

brokerage or agent. 

These provisions, as set forth in the 

proposed Final Judgment, are designed 

to resolve the competitive concerns with 

NAR’s Commission-Filter Rules and 

Practices as alleged in the Complaint. 

4. Lockbox Policy 

Paragraph IV.4 of the proposed Final 

Judgment prohibits NAR and its 

Member Boards from adopting, 

maintaining, or enforcing any rule, or 

from entering into or enforcing any 

agreement or practice, that directly or 

indirectly ‘‘prohibits, discourages, or 

recommends against the eligibility of 

any licensed real estate agent or agent of 

a Broker, from accessing, with seller 

approval, he lockboxes of those 

properties listed on an MLS.’’ 

Paragraph V.H. of the proposed Final 

Judgment further requires NAR to adopt 

one or more rules, the content of which 

must be approved by the United States, 

that ‘‘requires all Member Boards and 

MLSs to allow any licensed real estate 

agent or agent of a Broker, to access, 

with seller approval, the lockboxes of 

those properties listed on an MLS.’’ 

These provisions, as set forth in the 

proposed Final Judgment, are designed 

to resolve the competitive concerns with 

NAR’s Lockbox Policy as alleged in the 

Complaint. 

B. Other Provisions 

Notice to Member Boards, MLS 

Participants and Public. Paragraph V.I. 

of the proposed Final Judgment requires 

NAR to furnish notice of this action to 

all of its Member Boards and MLS 

Participants through (1) a 

communication, in a form to be 

approved by the United States, that 

must contain the Final Judgment, the 

new rules NAR proposes to issue to 

comply with the proposed Final 

Judgment, and this Competitive Impact 

Statement; and (2) the creation and 

maintenance of a page on NAR’s 

website, to be posted for no less than 

one year, that contains links to the Final 

Judgment, the new rules NAR proposes 

to issue to comply with the proposed 

Final Judgment, this Competitive Impact 

Statement; and the Complaint. 

Notification to NAR’s Member Boards 

and MLS Participants is required to 

ensure compliance with the Final 

Judgment by NAR and its Member 

Boards and MLS Participants, while 

publication of this action on NAR’s 

website will provide notice to the public 

of all prohibited and required conduct. 

Antitrust Compliance Officer. The 

proposed Final Judgment also contains 

provisions designed to promote 

compliance and make enforcement of 

the Final Judgment as effective as 

possible. Paragraph VI requires NAR to 

appoint an Antitrust Compliance Officer 

who is responsible for, among other 

things, annually briefing NAR’s 

management on the meaning and 

requirements of the Final Judgment and 

the antitrust laws, providing NAR’s 

management and employees with 

reasonable notice of the meaning and 

requirements of the Final Judgment, and 

obtaining and maintaining certification 

from all members of NAR’s management 

that they understand and agree to abide 

by the terms of the Final Judgment. The 

Antitrust Compliance Officer is also 

required to (1) annually communicate to 

NAR’s management and employees that 

they must disclose to the Antitrust 

Compliance Officer any information 

concerning any potential violation of 

the Final Judgment of which they are 

aware and (2) file a report with the 

United States describing that NAR has 

met its obligations under the Final 

Judgment. 

Enforcement of Final Judgment. 

Paragraph IX.A. provides that the 

United States retains and reserves all 

rights to enforce the Final Judgment, 

including the right to seek an order of 

contempt from the Court. Under the 

terms of this paragraph, NAR has agreed 

that in any civil contempt action, any 

motion to show cause, or any similar 

action brought by the United States 

regarding an alleged violation of the 

Final Judgment, the United States may 

establish the violation and the 

appropriateness of any remedy by a 

preponderance of the evidence and that 

NAR has waived any argument that a 

different standard of proof should 

apply. This provision aligns the 

standard for compliance with the Final 

Judgment with the standard of proof 

that applies to the underlying offense 

that the Final Judgment addresses. 

Paragraph IX.B. provides additional 

clarification regarding the interpretation 

of the provisions of the proposed Final 

Judgment. The proposed Final Judgment 

is intended to remedy the competition 

the United States alleges was harmed by 

the challenged conduct. NAR agrees that 

it will abide by the proposed Final 

Judgment and that it may be held in 

contempt of the Court for failing to 

comply with any provision of the 

proposed Final Judgment that is stated 

specifically and in reasonable detail, as 

interpreted in light of this 

procompetitive purpose. 

Paragraph IX.C. of the proposed Final 

Judgment provides that if the Court 

finds in an enforcement proceeding that 

NAR has violated the Final Judgment, 

the United States may apply to the 

Court for a one-time extension of the 

Final Judgment, together with such 

other relief as may be appropriate. In 

addition, to compensate American 

taxpayers for any costs associated with 

investigating and enforcing violations of 

the Final Judgment, Paragraph IX.C. 

provides that, in any successful effort by 

the United States to enforce the Final 

Judgment against NAR, whether 

litigated or resolved before litigation, 

NAR will reimburse the United States 

for attorneys’ fees, experts’ fees, and 

other costs incurred in connection with 

any effort to enforce the Final Judgment, 

including the investigation of the 

potential violation. 

Paragraph IX.D. states that the United 

States may file an action against NAR 

for violating the Final Judgment for up 

to four years after the Final Judgment 

has expired or been terminated. This 

provision is meant to address 

circumstances such as when evidence 

that a violation of the Final Judgment 

occurred during the term of the Final 

Judgment is not discovered until after 

the Final Judgment has expired or been 

terminated or when there is not 

sufficient time for the United States to 

complete an investigation of an alleged 

violation until after the Final Judgment 

has expired or been terminated. This 

provision, therefore, makes clear that, 

for four years after the Final Judgment 

has expired or been terminated, the 

United States may still challenge a 

violation that occurred during the term 

of the Final Judgment. 

Expiration of Final Judgment. 

Paragraph X of the proposed Final 

Judgment provides that the Final 

Judgment will expire seven years from 

the date of its entry, except that after 

five years from the date of its entry, the 

Final Judgment may be terminated upon 

notice by the United States to the Court 

and NAR that the continuation of the 

Final Judgment is no longer necessary or 

in the public interest. 

Reservation of Rights. Paragraph XI of 

the proposed Final Judgment reserves 

the rights of the United States to 

investigate and bring actions to prevent 

or restrain violations of the antitrust 

laws concerning any rule, policy, or 

practice adopted or enforced by NAR or 

any of its Member Boards and that 

nothing in the Final Judgment shall 

limit those rights. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 


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attorneys’ fees. Entry of the proposed 

Final Judgment neither impairs nor 

assists the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against NAR. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least 60 days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within 60 days of the date 

of publication of this Competitive 

Impact Statement in the Federal 

Register, or the last date of publication 

in a newspaper of the summary of this 

Competitive Impact Statement, 

whichever is later. All comments 

received during this period will be 

considered by the U.S. Department of 

Justice, which remains free to withdraw 

its consent to the proposed Final 

Judgment at any time before the Court’s 

entry of the Final Judgment. The 

comments and the response of the 

United States will be filed with the 

Court. In addition, comments will be 

posted on the U.S. Department of 

Justice, Antitrust Division’s internet 

website and, under certain 

circumstances, published in the Federal 

Register. 

Written comments should be 

submitted to: Chief, Media, 

Entertainment and Professional Services 

Section, Antitrust Division, U.S. 

Department of Justice, 450 Fifth Street 

NW, Suite 4000, Washington, DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

As an alternative to the proposed 

Final Judgment, the United States 

considered a full trial on the merits 

against NAR. The United States could 

have continued the litigation and sought 

preliminary and permanent injunctions 

against NAR for the challenged conduct. 

The United States is satisfied, however, 

that the prohibited and required 

conduct described in the proposed Final 

Judgment will remedy the 

anticompetitive effects alleged in the 

Complaint, increasing competition for 

buyer broker services in the United 

States. Thus, the proposed Final 

Judgment is designed to achieve all or 

substantially all of the relief the United 

States would have obtained through 

litigation, but avoids the time, expense, 

and uncertainty of a full trial on the 

merits of the Complaint. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a 60-day 

comment period, after which the Court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

public interest.’’ 15 U.S.C. 16(e)(1). In 

making that determination, the Court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) the impact of entry of such 

judgment upon competition in the 

relevant market or markets, upon the 

public generally and individuals 

alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public 

benefit, if any, to be derived from a 

determination of the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

Court’s inquiry is necessarily a limited 

one as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); United States v. 

Associated Milk Producers, Inc., 534 

F.2d 113, 117 (8th Cir. 1976) (‘‘It is 

axiomatic that the Attorney General 

must retain considerable discretion in 

controlling government litigation and in 

determining what is in the public 

interest.’’); United States v. U.S. 

Airways Grp., Inc., 38 F. Supp. 3d 69, 

75 (D.D.C. 2014) (explaining that the 

‘‘court’s inquiry is limited’’ in Tunney 

Act settlements); United States v. InBev 

N.V./S.A., No. 08–1965 (JR), 2009 U.S. 

Dist. LEXIS 84787, at *3 (D.D.C. Aug. 

11, 2009) (noting that a court’s review 

of a consent judgment is limited and 

only inquires ‘‘into whether the 

government’s determination that the 

proposed remedies will cure the 

antitrust violations alleged in the 

complaint was reasonable, and whether 

the mechanism to enforce the final 

judgment are clear and manageable’’). 

As the U.S. Court of Appeals for the 

District of Columbia Circuit has held, 

under the APPA, a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations in the government’s 

complaint, whether the proposed Final 

Judgment is sufficiently clear, whether 

its enforcement mechanisms are 

sufficient, and whether it may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

proposed Final Judgment, a court may 

not ‘‘‘make de novo determination of 

facts and issues.’ ’’ United States v. W. 

Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 

1993) (quoting United States v. Mid-Am. 

Dairymen, Inc., No. 73 CV 681–W–1, 

1977 WL 4352, at *9 (W.D. Mo. May 17, 

1977)); see also Microsoft, 56 F.3d at 

1460–62; United States v. Alcoa, Inc., 

152 F. Supp. 2d 37, 40 (D.D.C. 2001); 

United States v. Enova Corp., 107 F. 

Supp. 2d 10, 16 (D.D.C. 2000); InBev, 

2009 U.S. Dist. LEXIS 84787, at *3. 

Instead, ‘‘[t]he balancing of competing 

social and political interests affected by 

a proposed antitrust consent decree 

must be left, in the first instance, to the 

discretion of the Attorney General.’’ W. 

Elec. Co., 993 F.2d at 1577 (quotation 

marks omitted). ‘‘The court should bear 

in mind the flexibility of the public 

interest inquiry: the court’s function is 

not to determine whether the resulting 

array of rights and liabilities is one that 

will best serve society, but only to 

confirm that the resulting settlement is 

within the reaches of the public 

interest.’’ Microsoft, 56 F.3d at 1460 

(quotation marks omitted); see also 

United States v. Deutsche Telekom AG, 

No. 19–2232 (TJK), 2020 WL 1873555, at 

*7 (D.D.C. Apr. 14, 2020). More 

demanding requirements would ‘‘have 

enormous practical consequences for 

the government’s ability to negotiate 

future settlements,’’ contrary to 

congressional intent. Id. at 1456. ‘‘The 

Tunney Act was not intended to create 

a disincentive to the use of the consent 


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decree.’’ Id.; see also United States v. 

Mid-Am. Dairymen, Inc., No. 73 CV 

681–W–1, 1977 WL 4352, at *9 (W.D. 

Mo. May 17, 1977) (‘‘It was the intention 

of Congress in enacting [the] APPA to 

preserve consent decrees as a viable 

enforcement option in antitrust cases.’’). 

The United States’ predictions about 

the efficacy of the remedy are to be 

afforded deference by the Court. See, 

e.g., Microsoft, 56 F.3d at 1461 

(recognizing courts should give ‘‘due 

respect to the Justice Department’s . . . 

view of the nature of its case’’); United 

States v. Iron Mountain, Inc., 217 F. 

Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In 

evaluating objections to settlement 

agreements under the Tunney Act, a 

court must be mindful that [t]he 

government need not prove that the 

settlements will perfectly remedy the 

alleged antitrust harms[;] it need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’) (internal citations omitted); 

United States v. Republic Servs., Inc., 

723 F. Supp. 2d 157, 160 (D.D.C. 2010) 

(noting ‘‘the deferential review to which 

the government’s proposed remedy is 

accorded’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 

6 (D.D.C. 2003) (‘‘A district court must 

accord due respect to the government’s 

prediction as to the effect of proposed 

remedies, its perception of the market 

structure, and its view of the nature of 

the case’’); see also Mid-Am. Dairymen, 

1977 WL 4352, at *9 (‘‘The APPA 

codifies the case law which established 

that the Department of Justice has a 

range of discretion in deciding the terms 

upon which an antitrust case will be 

settled’’). The ultimate question is 

whether ‘‘the remedies [obtained by the 

Final Judgment are] so inconsonant with 

the allegations charged as to fall outside 

of the ‘reaches of the public interest.’ ’’ 

Microsoft, 56 F.3d at 1461 (quoting W. 

Elec. Co., 900 F.2d at 309). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459; see also U.S. Airways, 38 

F. Supp. 3d at 75 (noting that the court 

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he 

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of using 

consent judgments proposed by the 

United States in antitrust enforcement, 

Public Law 108–237 § 221, and added 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2); see also 

U.S. Airways, 38 F. Supp. 3d at 76 

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). This language 

explicitly wrote into the statute what 

Congress intended when it first enacted 

the Tunney Act in 1974. As Senator 

Tunney explained: ‘‘[t]he court is 

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Sen. Tunney). ‘‘A court 

can make its public interest 

determination based on the competitive 

impact statement and response to public 

comments alone.’’ U.S. Airways, 38 F. 

Supp. 3d at 76 (citing Enova Corp., 107 

F. Supp. 2d at 17). 

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: December 10, 2020. 

Respectfully submitted, 

FOR PLAINTIFF UNITED STATES OF 

AMERICA 

/s/ 

lllllllllllllllllllll

SAMER M. MUSALLAM (DC Bar # 986077) 

U.S. Department of Justice, Antitrust 

Division, 950 Pennsylvania Ave. NW, Suite 

3110, Washington, DC 20530, Tel: (202) 598– 

2990, Fax: (202) 514–9033, Email: 

samer.musallam@usdoj.gov. 

[FR Doc. 2020–27685 Filed 12–15–20; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Intuit Inc., et al.; 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia, in United States of America 

v. Intuit Inc. and Credit Karma, Inc., 

Civil Action No. 1:20–cv–03441–ABJ. 

On November 25, 2020 the United 

States filed a Complaint alleging that the 

proposed acquisition by Intuit Inc. of 

Credit Karma, Inc. would violate 

Section 7 of the Clayton Act, 15 U.S.C. 

18. The proposed Final Judgment, filed 

at the same time as the Complaint, 

requires Intuit and Credit Karma to 

divest Credit Karma’s digital do-ityourself (‘‘DDIY’’) tax preparation 

business, Credit Karma Tax, along with 

the products, intellectual property, and 

other related assets and rights that 

Credit Karma uses to provide DDIY tax 

preparation products to consumers. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

http://www.justice.gov/atr and at the 

Office of the Clerk of the United States 

District Court for the District of 

Columbia. Copies of these materials may 

be obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, including the name of the 

submitter, and responses thereto, will be 

posted on the Antitrust Division’s 

website, filed with the Court, and, under 

certain circumstances, published in the 

Federal Register. Comments should be 

directed to Robert A. Lepore, Chief, 

Transportation, Energy, and Agriculture 

Section, Antitrust Division, Department 

of Justice, 450 Fifth Street NW, Suite 

8000, Washington, DC 20530 

(telephone: 202–476–0375). 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

United States District Court for the District 

of Columbia 

United States of America, Plaintiff, v. Intuit 

Inc. and Credit Karma, Inc., Defendants. 

Civil Action No.: 1:20–cv–03441–ABJ 

Judge Amy Berman Jackson 


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