[Federal Register Volume 73, Number 158 (Thursday, August 14, 2008)]
[Notices]
[Pages 47613-47632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17800]


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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 Northern District of Illinois in 
United States of America v. National Association of Realtors[supreg], 
No. 05-C-5140. On September 8, 2005, the United States filed a 
Complaint alleging that the National Association of Realtors[supreg] 
(``NAR'') violated Section 1 of the Sherman Act, 15 U.S.C. 1, by 
adopting policies that suppress competition from real estate brokers 
who use password-protected ``virtual office websites'' or ``VOWs'' to 
deliver high-quality brokerage services to their customers. The 
proposed Final Judgment, filed on May 27, 2008, requires NAR to repeal 
the challenged policies arid to adopt new rules that do not 
discriminate against brokers who use VOWs.
    Copies of the Amended Complaint, proposed Final Judgment and 
Competitive Impact Statement are available for inspection at the 
Department of Justice, Antitrust Division, Antitrust Documents Group, 
450 5th Street, NW., Room 1010, Washington, DC 20530 (telephone: 202 
514-2481), on the Department of Justice's Web site at http://www.usdoj.gov/atr, and at the Office of the Clerk of the United States 
District Court for the Northern District of Illinois. 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, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be addressed 
to John R. Read, Chief, Litigation III Section, Antitrust Division, 
U.S. Department of Justice, 450 5th Street, NW., Suite 4000, 
Washington, DC 20530, (202) 307-0468. Please note that this notice 
supercedes 73 FR 36104, the June 25, 2008, publication of the proposed 
Final Judgment and Competitive Impact Statement in United States of 
America v. National Association of Realtors[supreg]. That publication 
contained a typesetting error in the ``Statement of MLS Policy'' that 
is Exhibit B to the proposed Final Judgment (73 FR at 36112). A 
corrected version of Exhibit B to the proposed Final Judgment is 
included with this notice.

J. Robert Kramer II,
Director of Operations, Antitrust Division.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS 
EASTERN DIVISION

    United States of America, Department of Justice, Antitrust 
Division, 325 7th Street, NW., Suite 300, Washington, DC 20530, 
Plaintiff, v. National Association of Realtors, 430 North Michigan 
Ave., Chicago, IL 60611, Defendant.

Civil Action No. 05C-5140, Judge Filip, Magistrate Judge Denlow.

Filed: October 4, 2005

Amended Complaint

    The United States of America, by its attorneys acting under the 
direction of the Attorney General, brings this civil action pursuant to 
Section 4 of the

[[Page 47614]]

Sherman Act, as amended, 15 U.S.C. 4, to obtain equitable and other 
relief to prevent and restrain violations of Section 1 of the Sherman 
Act, as amended, 15 U.S.C. 1.
    The United States alleges:
    1. The United States brings this action to enjoin the defendant--a 
national association of real estate brokers--from maintaining or 
enforcing policies that restrain competition from brokers who use the 
Internet to more efficiently and cost effectively serve home sellers 
and buyers, and from adopting other related anticompetitive rules.
    2. The brokers against whom the policies discriminate operate 
secure, password-protected Internet sites that enable the brokers' 
customers to search for and receive real estate listings over the 
Internet. These websites thus replace or augment the traditional 
practice by which the broker conducts a search of properties for sale 
and then provides information to the customer by hand, mail, fax, or e-
mail. Since these websites were first developed in the late 1990s, 
brokers' use of the Internet in connection with their delivery of 
brokerage services has become an important competitive alternative to 
traditional ``brick-and-mortar'' business models.
    3. Defendant's members include traditional brokers who are 
concerned about competition from Internet-savvy brokers. Before 
defendant adopted its policies, several of its members voiced 
opposition to brokers' delivery of listings to customers through their 
websites--sites that defendant referred to as ``virtual office 
websites,'' or ``VOWs.'' The head of the working group created by 
defendant to develop regulations for VOWs argued that defendant should 
act quickly in adopting regulations for the use of these websites 
because brokers operating VOWs were ``scooping up market share just 
below the radar.'' The chairman of the board of RE/MAX, the nation's 
second-largest real estate franchisor, publicly expressed his concern 
that these Internet sites would inevitably place downward pressure on 
brokers' commission rates. One broker complained that because of the 
lower cost structure of brokers who provide listings to their customers 
over the Internet, they are able to kick-back 1% of the sales price to 
the buyer.'' And Cendant, the nation's largest real estate franchisor 
and owner of the nation's largest real estate brokerage, asserted in a 
widely circulated white paper that it was ``not feasible'' for even the 
largest traditional brokers to compete with large Internet companies 
that operated or affiliated with brokers operating VOWs.
    4. In response to such concerns, defendant, through its members, 
adopted a policy (the ``Initial VOW Policy'') limiting this new 
competition. The Initial VOW Policy has been implemented in many 
markets. After plaintiff informed NAR of its intention to bring this 
action, NAR announced that it had modified this policy (the ``Modified 
VOW Policy''). Plaintiff challenges both policies in this action as 
part of a single, ongoing contract, combination, or conspiracy.
    5. These policies significantly alter the rules governing multiple 
listing services (``MLSs'') MLSs collect detailed information about 
nearly all properties for sale through brokers and are indispensable 
tools for brokers serving buyers and sellers in each MLS's market area. 
Defendant's local Realtor associations (``member boards'') control a 
majority of the MLSs in the United States.
    6. Defendant's VOW Policies permit brokers to withhold their 
clients' listings from VOW operators by means of an ``opt-out'' right. 
In essence, the policies allow traditional brokers to block the 
customers of web-based competitors from using the Internet to review 
the same set of MLS listings that the traditional brokers provide to 
their customers.
    7. The working group that formulated defendant's Initial VOW Policy 
understood that the opt-out right was fundamentally anticompetitive and 
harmful to consumers. Two members of the working group wrote that the 
opt-out right would be ``abused beyond belief'' as traditional brokers 
selectively withhold listings from particular VOW-based competitors. 
The chairman of the working group admitted that the opt-out right was 
likely to be exercised by brokers notwithstanding the fact that ``it 
may not be in the seller['] best interest to opt out.'' But he took 
comfort in the fact that the rule did not require brokers to disclose 
to clients that their listings would be withheld from some prospective 
purchasers as a result of the brokers' opt-out decision, thus providing 
brokers ``flexibility without conversation.''
    8. Defendant's VOW Policies restrict the manner in which brokers 
with efficient, Internet-based business models may provide listings to 
their customers, and impose additional restrictions on brokers 
operating VOWs that do not apply to their traditional competitors. 
Defendant thus denies brokers using new technologies and business 
models the same benefits of MLS membership available to their 
competitor brokers, and it suppresses technological innovation, 
discourages competition on price and quality, and raises barriers to 
entry. Defendant--an association of competitors--has agreed to policies 
that suppress new competition and harm consumers.

Jurisdiction and Venue

    9. This Complaint is filed under Section 4 of the Sherman Act, as 
amended, 15 U.S.C. 4, to prevent and restrain violations by defendant 
of Section 1 of the Sherman Act, 15 U.S.C. 1. This Court has subject 
matter jurisdiction over this action under 28 U.S.C. 1331, 1337(a), and 
1345.
    10. Venue is proper in this district under 28 U.S.C. 139 1(b) 
because defendant maintains its principal place of business in Chicago, 
Illinois, and is found here.

Defendant

    11. Defendant National Association of Realtors (``NAR'') is a trade 
association organized under the laws of Illinois with its principal 
place of business in Chicago, Illinois. NAR establishes and enforces 
policies and professional standards for its over one million individual 
member brokers and their affiliated agents and sales associates 
(``Realtors''), and 1,600 local and state member boards. NAR's member 
brokers compete with one another in local brokerage services markets to 
represent consumers in connection with real estate transactions.

Concerted Action

    12. Various others, not named as defendants, have contracted, 
combined, or conspired with NAR in the violations alleged in this 
Complaint and have performed acts and made statements in furtherance 
thereof.

Trade and Commerce

    13. NAR's policies govern the conduct of its members in all fifty 
states, including all Realtors and all of NAR's member boards. NAR's 
member boards control approximately eighty percent of the approximately 
1,000 MLSs in the United States.
    14. NAR's activities, and the violations alleged in this Complaint, 
affect home buyers and sellers located throughout the United States.
    15. NAR, through its members, is engaged in interstate commerce and 
is engaged in activity affecting interstate commerce.

Relevant Markets

    16. The provision of real estate brokerage services to sellers of 
residential real property and the

[[Page 47615]]

provision of real estate brokerage services to buyers of residential 
real property are relevant service markets.
    17. The real estate brokerage business is local in nature. Most 
sellers prefer to work with a broker who is familiar with local market 
conditions and who maintains an office or affiliated sales associates 
within a reasonable distance of the seller's property. Likewise, most 
buyers seek to purchase property in a particular city, community, or 
neighborhood, and typically prefer to work with a broker who has 
knowledge of the area in which they have an interest. The geographic 
coverage of the MLS serving each town, city, or metropolitan area 
normally establishes the outermost boundaries of each relevant 
geographic market, although meaningful competition among brokers may 
occur in narrower local areas.

Background of the Offense

    18. At any one time there are over 1.5 million homes for sale in 
the United States. Most home sellers and buyers engage residential real 
estate brokers to facilitate transactions.
    19. The predominant form of payment for brokerage services is a 
``commission,'' a percentage of the price paid for the property. In a 
typical transaction, the seller agrees to pay a commission to the 
broker who has contracted with the seller to market the home (the 
``listing broker''). If the listing broker finds the buyer, the listing 
broker keeps the full commission. Frequently, however, a second broker 
(the ``cooperating broker'') finds the buyer, and the two brokers share 
the commission.
    20. After a listing broker has established an agency relationship 
with a seller, the broker typically submits detailed information 
regarding the seller's property to a local NAR-affiliated MLS. Along 
with the information about the property it submits to the MLS, the 
listing broker also typically includes an offer to split the commission 
with any cooperating broker.
Multiple Listing Services
    21. MLSs are joint ventures among competing brokers to share their 
clients' listings and to cooperate in other ways. MLSs list virtually 
all homes for sale through a broker in the areas they serve. In a 
substantial majority of markets, a single MLS provides the only 
available comprehensive compilation of listings. The MLS allows brokers 
representing sellers to effectively market the sellers' properties to 
all other broker participants in the MLS and their buyer customers. 
Conversely, the MLS allows brokers to provide their buyer customers 
information about all listed properties in which the customers might 
have an interest.
    22. NAR promulgates rules governing the conduct of MLSs and 
requires its member boards to adopt these rules.
    23. The vast majority of brokers believe that they must participate 
in the MLS operating in their local market in order to adequately serve 
their customers and compete with other brokers. As a result, few 
brokers would withdraw from MLS participation even if the fees or other 
costs associated with that participation substantially increased.
    24. By virtue of industry-wide participation and control over a 
critically important input, the MLS (a joint venture of competing 
brokers) has market power in almost every relevant market.
    25. The methods of making MLS information available to customers 
have changed as technology has evolved. From the 1920s, when MLSs first 
became prevalent, brokers allowed customers to view a printed ``MLS 
book.'' Later, the availability of copy machines allowed brokers to 
reproduce pages from the MLS book and deliver the pages with responsive 
listings to customers by hand or mail. The advent of facsimile 
transmission--and, later, electronic mail--further quickened the 
process of delivering MLS listings to customers.
Virtual Office Websites
    26. With the development of the Internet as an information source 
for consumers, potential home buyers began to seek Internet sources of 
information about homes for sale. Beginning in the late 1990s, a number 
of NAR member brokers began creating password-protected Web sites that 
enabled potential home buyers, once they had registered as customers of 
the broker and agreed to certain restrictions on their use of the data, 
to search the MLS database themselves and to obtain responsive MLS 
listings over the Internet. These websites came to be known as virtual 
office websites or VOWs. NAR recognizes the Internet delivery of MLS 
listings to customers to be an authorized method of providing brokerage 
services.
    27. Brokers can use the Internet to operate more efficiently than 
they can by using only traditional methods. By transferring search 
functions from the broker to customers who prefer such control over the 
process, VOW-operating brokers allow customers to educate themselves at 
their own pace about the market in which they are considering a 
purchase. By doing so, brokers with successful password-protected Web 
sites are able to reduce or eliminate the time and expense involved in 
identifying and providing relevant listings and otherwise educating 
their customers. These brokers also spend less time on home tours with 
their buyer customers, as these buyers frequently tour fewer homes 
before making a purchase decision than typical buyers. With lower cost 
structures, brokers with Internet-intensive business models have 
offered discounted commissions to sellers or commission rebates to 
buyers.
    28. Other sources of listing information on the Internet are 
inferior to the password-protected VOWs because they do not and cannot 
guarantee access to all information available in the MLS.
    29. Brokers can also use the Internet to support a ``referral'' 
business model. Referral services provide brokers information about 
potential buyers in return for a share of any commission the broker 
receives if the ``lead'' results in a completed transaction. Brokers 
are not obliged to purchase leads from referral services and do so only 
when they choose to. Some traditional brokers refer customers to other 
brokers for a fee, and some VOW operators, similarly, have referred (or 
have considered referring) some of their customers to other brokers for 
a fee. Many brokers dislike the concept of paying for leads, and the 
prospect that Internet-savvy brokers could support referral business 
models has been a source of industry antipathy to VOWs.

Nature of the Offense

    30. Brokers with innovative, Internet-based business models present 
a competitive challenge to brokers who provide listings to their 
customers only by traditional methods. Many brick-and-mortar brokers 
fear the ability of VOW operators to use Internet technology to attract 
more customers and provide better service at a lower cost.
    31. In response to concerns raised by certain NAR members about 
this new form of competition, NAR's Board of Directors voted on May 17, 
2003, to adopt the ``Initial VOW Policy,'' a ``Policy governing use of 
MLS data in connection with Internet brokerage services offered by MLS 
Participants (`Virtual Office Websites').'' Prior to the filing of the 
Complaint in this action, NAR had mandated that all 1,600 of its member 
boards implement the Initial VOW Policy by January 1, 2006. 
Approximately 200 member boards implemented the Initial VOW Policy

[[Page 47616]]

and received NAR's approval of their implementing rules.
    32. Section I.3 of the Initial VOW Policy contains an opt-out 
provision that forbids any broker participating in an MLS from 
conveying a listing to his or her customers via the Internet without 
the permission of the listing broker. Specifically, the opt-out 
provision allows brokers to direct that their clients' listings not be 
displayed on any VOW (a ``blanket opt-out'), or on a particular 
competing broker's VOW (a ``selective opt-out'').
    33. In contrast, prior to NAR's adoption of the Initial VOW Policy, 
a broker could provide any relevant listing in the MLS database to any 
customer--by whatever method the customer or broker preferred, 
including via the Internet. Nearly all of NAR's member boards had also 
adopted rules requiring all participants in their affiliated MLSs to 
submit, with minor exceptions, all of their clients' listings to the 
MLS. More importantly, NAR did not permit any broker to withhold his or 
her clients' listings from a rival.
    34. In several of the markets in which NAR's member boards have 
implemented the Initial VOW Policy, brokers have already exercised 
their opt-out rights to withhold their clients' listings from the 
customers of brokers operating VOWs, as well as from brokers who will 
use password-protected websites to provide listings to their customers 
in the future. In at least one such instance, an innovative broker 
discontinued operation of his website because all of his competitor 
brokers had opted out, making him unable to effectively serve his 
customers through operation of his site.
    35. Section II.4.g of the Initial VOW Policy contains an ``anti-
referral'' provision that, with minor exceptions, forbids VOW operators 
from referring their customers to ``any other entity'' for a fee. In 
contrast, no NAR rule limits referrals for a fee by brokers who do not 
convey MLS listings to customers over the Internet.
    36. The Initial VOW Policy includes other provisions that impose 
greater restrictions and limitations on brokers with Internet-based 
business models than on traditional brokers. For example, under section 
IV.1.b of the Initial VOW Policy, NAR's member boards may forbid VOW 
operators from displaying advertising on any website on which MLS 
listings information is displayed. In contrast, no NAR rule limits the 
ability of traditional brokers to include advertisements in packages of 
printed listings they provide to their customers.
    37. The Initial VOW Policy also contains provisions to make it 
obligatory and enforceable. Section I.4 of the Initial VOW Policy 
expressly forbids NAR's member boards from adopting rules ``more or 
less restrictive than, or otherwise inconsistent with'' the Initial VOW 
Policy, including the opt-out provisions and the anti-referral 
provision. Appendix A to the Initial VOW Policy provides for remedies 
and sanctions for violation of the Policy, including financial 
penalties and termination of MLS privileges.
    38. On September 8, 2005, after plaintiff informed NAR of its 
intention to bring this action, NAR advised its member boards to 
suspend application and enforcement of the above-referenced provisions 
of the Initial VOW Policy, and announced its adoption of a new 
``Internet Listings Display Policy'' and its revision of an MLS 
membership policy (together, the ``Modified VOW Policy''). NAR's 
Modified VOW Policy continues to impede brokers from using the Internet 
to serve home sellers and buyers more efficiently and cost effectively. 
NAR's Modified VOW Policy mandates that all of NAR's member boards 
enact rules implementing the Internet Listings Display Policy by July 
1, 2006, but NAR subsequently communicated to its member boards that 
they ``wait to adopt'' the policy ``until th[is] litigation is over.''
    39. Section I.3 of the Modified VOW Policy contains a blanket opt-
out provision that forbids any broker participating in an MLS from 
conveying a listing to his or her customers via the Internet without 
the permission of the listing broker. Specifically, the opt-out 
provision allows brokers to direct that their clients' listings not be 
displayed on any competitor's Internet site. When exercised, this 
provision prevents a broker from providing over the Internet the same 
MLS information that brick-and-mortar brokers can provide in their 
offices. Additionally, NAR's Modified VOW Policy specifically exempts 
its own ``Official Site,'' Realtor.com, from the blanket opt out that 
applies to all Internet sites operated by brokers.
    40. The portion of the Modified VOW Policy that is NAR's revision 
to its membership policies--much like the Initial VOW Policy's anti-
referral rule--denies MLS membership and access to listings to brokers 
operating referral services. This membership policy effectively forbids 
Internet-based brokers from referring their customers to other brokers 
for a fee.
    41. NAR's Modified VOW Policy includes other provisions that 
restrict brokers' ability to use the Internet to serve their customers 
effectively. The Modified VOW Policy, for example, allows MLSs to 
downgrade the quality of the data feed they provide brokers, 
effectively restraining brokers from providing innovative, Internet-
based features to enhance the service they offer their customers. The 
Modified VOW Policy also permits MLSs to interfere with efficient 
``cobranding'' relationships between brokers and entities that refer 
potential customers to the broker.
    42. Defendant's policies, both the Initial VOW Policy and the 
Modified VOW Policy, thus prevent brokers from guaranteeing customers 
access through the Internet to all relevant listing information, 
increase the business risk and other costs associated with operating an 
efficient, Internet-intensive brokerage, deny brokers a source of high-
quality referrals, and withhold from Internet brokers revenue streams 
permitted to other participants in the MLS. Moreover, the opt-out 
provisions provide brokers an effective tool to individually or 
collectively punish aggressive competition by any Internet-based 
broker.
    43. Unless permanently restrained and enjoined, defendant will 
continue to engage in conduct that restricts competition from 
innovative brokers in violation of Section 1 of the Sherman Act, 15 
U.S.C. 1.

Violation Alleged

    44. NAR's adoption of the above-referenced provisions in its 
Initial VOW Policy and its Modified VOW Policy, or equivalent 
provisions, constitutes a contract, combination, or conspiracy by and 
between NAR and its members which unreasonably restrains competition in 
brokerage service markets throughout the United States in violation of 
Section 1 of the Sherman Act, 15 U.S.C. 1.
    45. The aforesaid contract, combination, or conspiracy has had and 
will continue to have anticompetitive effects in the relevant markets, 
including:
    a. Suppressing technological innovation;
    b. Reducing competition on price and quality;
    c. Restricting efficient cooperation among brokers;
    d. Making express or tacit collusion more likely; and
    e. Raising barriers to entry.
    46. This contract, combination, or conspiracy is not reasonably 
necessary to accomplish any procompetitive objective, or, 
alternatively, its scope is broader than necessary to accomplish any 
such objective.

[[Page 47617]]

Request for Relief

    Wherefore, the United States prays that final judgment be entered 
against defendant declaring, ordering, and adjudging:
    a. That the aforesaid contract, combination, or conspiracy 
unreasonably restrains trade and is illegal under Section 1 of the 
Sherman Act, 15 U.S.C. 1;
    b. That the defendant be restrained and enjoined from requiring or 
permitting its member boards or the MLSs with which they are affiliated 
to adopt rules implementing the opt-out provisions;
    c. That the defendant be restrained and enjoined from requiring or 
permitting its member boards or the MLSs with which they are affiliated 
to adopt rules implementing the anti-referral provision or an MLS 
membership restriction that denies MLS access to operators of Internet-
based referral services;
    d. That the defendant be restrained and enjoined from requiring or 
permitting its member boards or the MLSs with which they are affiliated 
to adopt rules that restrict--or condition MLS access or MLS 
participation rights on--the method by which a broker interacts with 
his or her customers, competitor brokers, or other persons or entities;
    e. That the Court grant such other relief as the United States may 
request and the Court deems just and proper; and
    f. that the United States recover its costs in this action.
Dated: October 4, 2005.

/s/--------------------------------------------------------------------

J. Bruce McDonald,

Deputy Assistant Attorney General.

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J. Robert Kramer II,

Director of Operations.

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Patrick J. Fitzgerald,

United States Attorney, Northern District of Illinois, by Linda 
Wawzenski, Assistant United States Attorney.

/s/--------------------------------------------------------------------

Craig W. Conrath,
David C. Kully,
Mary Beth McGee,
Allen P. Grunes,
Lisa A. Scanlon,

Attorneys for the United States, Department of Justice, Antitrust 
Division, 325 Seventh Street, NW., Suite 300, Washington, DC 20530, 
Telephone: (202) 305-9969, Facsimile: (202) 307-9952.

Certificate of Service

    I hereby certify that on this 4th day of October, 2005, I have 
caused a copy of the foregoing Amended Complaint be served by 
Federal Express upon counsel for Defendant in this matter:

Jack R. Bierig, Sidley Austin Brown & Wood, LLP, Bank One Plaza, 10 
South Dearborn Street, Chicago, IL 60603.

/s/--------------------------------------------------------------------

Linda Wawzenski

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS 
EASTERN DIVISION

    United States of America, Plaintiff, v. NATIONAL ASSOCIATION OF 
REALTORS,[supreg] Defendant

Civil Action No. 05 C 5140, Judge Kennelly, Magistrate Judge Denlow

[Proposed] Final Judgment

    Whereas, Plaintiff, the United States of America, filed its Amended 
Complaint on October 4, 2005, alleging that Defendant National 
Association of Realtors[supreg] (``NAR'') adopted policies that 
restrain competition from innovative real estate brokers in violation 
of Section 1 of the Sherman Act, 15 U.S.C. 1, and Plaintiff and 
Defendant, by their respective attorneys, have consented to the entry 
of this Final Judgment without trial or adjudication of any issue of 
fact, and without this Final Judgment constituting any evidence 
against, or any admission by, any party regarding any issue of fact or 
law;
    Whereas, Defendant has not admitted and does not admit either the 
allegations set forth in the Amended Complaint or any liability or 
wrongdoing;
    Whereas, the United States does not allege that Defendant's 
Internet Data Exchange (IDX) Policy in its current form violates the 
antitrust laws; and
    Whereas, the United States requires Defendant to agree to certain 
procedures and prohibitions for the purpose of preventing the loss of 
competition alleged in the Complaint;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact, and upon consent of the parties, it 
is ordered, adjudged and decreed:

I. Jurisdiction

    This Court has jurisdiction over the Parties and subject matter of 
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. ``Broker'' means a Person licensed by a state to provide 
services to a buyer or seller 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.
    B. ``Customer'' means a seller client of a Broker or a Person who 
has expressed to a Broker an interest in purchasing residential real 
property and who has described the type, features, or location of the 
property in which he or she has an interest, entitling the Broker to 
Provide the Customer multiple listing service (``MLS'') listing 
information by any method (e.g., by hand, mail, facsimile, electronic 
mail, or display on a VOW).
    C. ``Final Judgment'' includes the Modified VOW Policy attached as 
Exhibit A and the definition of MLS Participant and accompanying Note 
attached as Exhibit B.
    D. ``ILD Policy'' means the ``ILD (internet Listing Display) 
Policy'' that NAR adopted on or about August 31, 2005, and any 
amendments thereto.
    E. ``Including'' means including, but not limited to.
    F. ``Listing Information'' means all records of residential 
properties (and any information relating to those properties) stored or 
maintained by a multiple listing service.
    G. ``Member Board'' means any state or local Board of 
Realtors[supreg] or Association of Realtors[supreg], including any 
city, county, inter-county, or inter-state Board or Association, and 
any multiple listing service owned by, or affiliated with, any such 
Board of Realtors[supreg] or Association of Realtors[supreg].
    H. ``Modified VOW Policy'' means the policy attached to this Final 
Judgment as Exhibit A.
    I. ``NAR'' means the National Association of Realtors[supreg], its 
predecessors, successors, divisions, subsidiaries, affiliates, 
partnerships, and joint ventures and all directors, officers, 
employees, agents, and representatives of the foregoing. The terms 
``subsidiary,'' ``affiliate,'' and joint venture'' refer to any Person 
in which there is or has been partial (twenty percent or more) or total 
ownership or control between NAR and any other Person.
    J. ``Person'' means any natural person, corporation, company, 
partnership, joint venture, firm, association, proprietorship, agency, 
board, authority, commission, office, or other business or legal 
entity, whether private or governmental.
    K. ``Provide'' means to deliver, display, disseminate, convey, or 
reproduce.
    L. ``Rule'' means any rule, model rule, ethical rule, bylaw, 
policy, standard, or guideline and any interpretation of any Rule 
issued or approved by NAR,

[[Page 47618]]

whether or not the final implementation date of any such Rule has 
passed.
    M. ``VOW'' or ``virtual office website'' means a website, or 
feature of a website, operated by a Broker or for a Broker by another 
Person through which the Broker is capable of providing real estate 
brokerage services to consumers with whom the Broker has first 
established a Broker-consumer relationship (as defined by state law) 
where the consumer has the opportunity to search MLS data, subject to 
the Broker's oversight, supervision, and accountability.
    N. ``VOW Policy'' means the ``Policy governing use of MLS data in 
connection with Internet brokerage services offered by MLS Participants 
(``Virtual Office Websites'),'' adopted by NAR on or about May 17, 
2003, and any amendments thereto.
    O. The terms ``and'' and ``or'' have both conjunctive and 
disjunctive meanings:

III. Applicability

    This Final Judgment applies to NAR and all other Persons in active 
concert or participation with NAR who have received actual notice of 
this Final Judgment. A Member Board shall not be deemed to be in active 
concert with NAR solely as a consequence of the Member Board's receipt 
of actual notice of this Final Judgment and its affiliation with or 
membership in NAR and its involvement in regular activities associated 
with its affiliation with or membership in NAR (e.g., coverage under a 
NAR insurance policy, attendance at NAR meetings or conventions, or 
review of Member Board policies by MAR).

IV. Prohibited Conduct

    Subject to the provisions of Sections V and VI of this Final 
Judgment, the Modified VOW Policy (Exhibit A), and the definition of 
MLS Participant and accompanying Note (Exhibit B), NAR shall not adopt, 
maintain, or enforce any Rule, or enter into or enforce any agreement 
or practice, that directly or indirectly.
    A. Prohibits a Broker from using a VOW or prohibits, restricts, or 
impedes a Broker who uses a VOW from providing to Customers on its VOW 
all of the Listing Information that a Broker is permitted to Provide to 
Customers by hand, mail, facsimile, electronic mail, or any other 
methods of delivery;
    B. Unreasonably disadvantages or unreasonably discriminates against 
a Broker in the use of a VOW to Provide to Customers all of the Listing 
Information that a Broker is permitted to Provide to Customers by hand, 
mail, facsimile, electronic mail, or any other methods of delivery;
    C. Prohibits, restricts, or impedes the referral of Customers whose 
identities are obtained from a VOW by a Broker who uses a VOW to any 
other Person, or establishes the price of any such referral;
    D. Imposes tees or costs upon any Broker who operates a VOW or upon 
any Person who operates a VOW for any Broker that exceed the reasonably 
estimated actual costs incurred by a Member Board in providing Listing 
Information to the Broker or Person operating the VOW or in performing 
any other activities relating to the VOW, or discriminates in such VOW 
related fees or costs between those imposed upon a Broker who operates 
a VOW and those imposed upon a Person who operates a VOW for a Broker, 
unless the MLS incurs greater costs in providing a service to a Person 
who operates a VOW for a Broker than it incurs in providing the same 
service to the Broker; or
    E. Is inconsistent with the Modified VOW Policy.

V. Required Conduct

    A. Within five business days after entry of this Final Judgment, 
NAR shall repeal the ILD Policy and direct each Member Board that 
adopted Rules implementing the ILD Policy to repeal such Rules at the 
next meeting of the Member Board's decisionmaking body that occurs more 
than ten days after receipt of the directive, but no later than ninety 
days after entry of this Final Judgment.
    B. Within five business days after entry of this Final Judgment, 
NAR shall direct Member Boards that adopted Rules implementing the VOW 
Policy to repeal such Rules at the next meeting of the Member Board's 
decisionmaking body that occurs more than ten days after receipt of the 
directive, but no later than ninety days after entry of this Final 
Judgment.
    C. Within five business days after entry of this Final Judgment, 
NAR shall adopt the Modified VOW Policy. NAR shall not change the 
Modified VOW Policy without either obtaining advance written approval 
by the United States Department of Justice, Antitrust Division 
(``DOJ'') or an order of the Court pursuant to Section VIII of this 
Final Judgment authorizing the proposed modification.
    D. Within five business days after entry of this Final Judgment, 
NAR shall direct Member Boards to adopt the Modified VOW Policy within 
ninety days after entry of this Final Judgment, and to thereafter 
maintain, act consistently with, and enforce Rules implementing the 
Modified VOW Policy. NAR shall simultaneously direct Member Boards, 
beginning upon receipt of the directive, not to adopt, maintain, or 
enforce any Rule or practice that NAR would be prohibited from 
adopting, maintaining, or enforcing pursuant to Section IV of this 
Final Judgment (including Rules or practices that unreasonably 
discriminate against Brokers in their operation of VOWs).
    E. If NAR determines that a Member Board has not timely adopted or 
maintained, acted consistently with, or enforced Rules implementing the 
Modified VOW Policy, it shall, within thirty days of such 
determination, direct in writing that the Member Board do so. NAR shall 
deny coverage under any NAR insurance policy (or cause coverage to be 
denied) to any Member Board for as long as that Member Board refuses to 
adopt, maintain, act consistently with, and enforce rules implementing 
the Modified VOW Policy. NAR shall also notify the DOJ of the identity 
of that Member Board and the Modified VOW Policy provisions it refused 
to adopt, maintain, act consistently with, or enforce. For purposes of 
this provision, a failure of a Member Board to adopt, maintain, act 
consistently with, or enforce Rules implementing the Modified VOW 
Policy within ninety days of a written directive to that Member Board 
from NAR shall constitute a refusal by the Member Board to do so.
    F. If NAR determines that a Member Board has adopted, maintained, 
or enforced any Rule or practice that NAR would be prohibited from 
adopting, maintaining, or enforcing pursuant to Section IV of this 
Final Judgment (including Rules or practices that unreasonably 
discriminate against Brokers in their operation of VOWs), it shall, 
within thirty days of such determination, direct in writing that the 
Member Board rescind and cease to enforce that Rule or practice. NAR 
shall deny coverage under any NAR insurance policy (or cause coverage 
to be denied) to any Member Board for as long as that Member Board 
refuses to rescind and cease to enforce that Rule or practice. NAR 
shall also notify the DOJ of the identity of that Member Board and the 
Rule or practice it refused to rescind and cease to enforce. For 
purposes of this provision, a Member Board's failure to rescind and 
cease to enforce the Rule or practice within ninety days of a written 
directive from NAR shall constitute a refusal by the Member board to do 
so.
    G. Within thirty days of entry of this Final Judgment, NAR shall 
designate an Antitrust Compliance Officer with

[[Page 47619]]

responsibility for educating Member Boards about the antitrust laws and 
for achieving full compliance with this Final Judgment. The Antitrust 
Compliance Officer shall be responsible for the following:

    (1) Supervising NAR's review of Rules of NAR's Member Boards for 
compliance with this Final Judgment and the Modified VOW Policy;
    (2) Maintaining copies of any communications with any Person 
containing allegations of any Member Board's (i) noncompliance with 
any provision of the Modified VOW Policy or with this Final Judgment 
or (ii) failure to enforce any Rules implementing the Modified VOW 
Policy;
    (3) Reporting to the United States 180 days after entry of this 
Final Judgment and again on the first anniversary of the entry of 
this Final Judgment, the identity of each Member Board that has not 
adopted Rules implementing the Modified VOW Policy;
    (4) Ensuring that each of NAR's Member Boards that owns or 
Operates a multiple listing service are provided briefing materials, 
within ninety days of the entry of this Final Judgment, on the 
meaning and requirements of the Modified VOW Policy and this Final 
Judgment; and
    (5) Holding an annual program for NAR Member Boards and their 
counsel that includes a discussion of the antitrust laws (as applied 
to such Member Boards) and this Final Judgment.

    H. NAR shall maintain and shall furnish to the DOJ on a quarterly 
basis (beginning ninety days after entry of this Final Judgment) copies 
of any communications with any Person containing allegations of any 
Member's Board's (1) noncompliance with any provision of the Modified 
VOW Policy or with this Final Judgment or (2) failure to enforce any 
Rules implementing the Modified VOW Policy.
    I. Within five business days after entry of this Final Judgment, 
NAR shall provide, in a prominent size and location on its Web site 
(www.realtor.org) a hyperlink to a Web page on which NAR has published 
copies of
    (1) This Final Judgment;
    (2) A notification that Member Boards must repeal any Rules 
implementing the ILD and VOW Policies (in accordance with Sections V.A 
and V.B of this Final Judgment); and
    (3) A copy of the Modified VOW Policy.

NAR shall also publish each of the three above items in the first issue 
of Realtor[reg] Magazine scheduled for publication after the date of 
entry of this Final Judgment.

VI. Permitted Conduct

    A. Subject to Section IX of this Final Judgment, nothing in this 
Final Judgment shall prohibit NAR from adopting and maintaining the 
definition of MLS Participant and the accompanying Note, together 
attached as Exhibit B. However, NAR shall direct each Member Board not 
to suspend or expel any Broker from multiple listing service membership 
or participation for reasons of the Broker's then-failure to qualify 
for membership or participation under the definition of MLS Participant 
and the accompanying Note, together attached as Exhibit B, until May 
27, 2009.
    B. Notwithstanding any of the above provisions, and subject to 
Section IX of this Final Judgment, nothing in this Final Judgment shall 
prohibit NAR from adopting, maintaining, or enforcing Rules that are 
generally applicable on their face and that do not, in their 
application, unreasonably restrict any method of delivery of Listing 
Information to Customers.

VII. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether this Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time authorized representatives of the DOJ, including 
consultants and other Persons retained by the United States, shall, 
upon written request of an authorized representative of the Assistant 
Attorney General in charge of the Antitrust Division, and on reasonable 
notice to NAR, be permitted:

    (1) Access during NAR's office hours to inspect and copy, or at 
the option of the United States, to require NAR to provide hard copy 
or electronic copies of, all books, ledgers, accounts, records, 
data, and documents in the possession, custody, or control of NAR, 
relating to any matters contained in this Final Judgment; and
    (2) To interview, either informally or on the record, NAR's 
officers, employees, or agents, who may have their individual 
counsel and counsel for NAR present, regarding such matters. The 
interviews shall he subject to the reasonable convenience of the 
interviewee and without restraint or interference by NAR. NAR may, 
however, prevent the interviewee from divulging matters protected by 
the attorney-client privilege, work product doctrine, or other 
applicable privilege.

    B. Upon the written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, NAR 
shall submit written reports or response to written interrogatories, 
under oath if requested, relating to its compliance with any of the 
matters contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this section shall 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), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by NAR to 
the United States, NAR marks as confidential any pertinent page of such 
material on the grounds that such page contains information as to which 
a claim of protection may be asserted under Rule 26(c)(1)(G) of the 
Federal Rules of Civil Procedure, then the United States shall give NAR 
ten calendar days notice prior to divulging such material in any legal 
proceeding (other than a grand jury proceeding).

VIII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this 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. No Limitation on Government 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.

X. Expiration of Final Judgment

    This Final Judgment shall expire ten years from the date of its 
entry.

XI. 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 making copies available to the 
public of this Final Judgment, the Competitive Impact Statement, and 
any comments thereon and the United States's responses to comments. 
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.

Dated:

    Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16


[[Page 47620]]


Matthew F. Kennelly,
United States District Judge.

Exhibit A

Policy Governing Use of MLS Data in Connection With Internet Brokerage 
Services Offered by MLS Participants (``Virtual Office Websites'')

I. Definitions and Scope of Policy

    1. For purposes of this Policy, the term Virtual Office Website 
(``VOW'') refers to a Participant's Internet website, or a feature of a 
Participant's Internet website, through which the Participant is 
capable of providing real estate brokerage services to consumers with 
whom the Participant has first established a broker-consumer 
relationship (as defined by state law) where the consumer has the 
opportunity to search MLS data, subject to the Participant's oversight, 
supervision, and accountability.
    a. A Participant may designate an Affiliated VOW Partner (``AVP'') 
to operate a VOW on behalf of the Participant, subject to the 
Participant's supervision and accountability and the terms of this 
Policy.
    b. A non-principal broker or sales licensee, affiliated with a 
Participant, may, with the Participant's consent, operate a VOW or have 
a VOW operated on its behalf by an AVP. Such a VOW is subject to the 
Participant's supervision and accountability and the terms of this 
Policy.
     c. Each use of the term ``Participant'' in this Policy shall also 
include a Participant's non-principal brokers and sales licensees (with 
the exception of references in this section to the ``Participant's 
consent'' and the ``Participant's supervision and accountability,'' and 
in section III.l0.a, below, to the ``Participant acknowledges''). Each 
reference to ``VOW'' or ``VOWs'' herein refers to all VOWs, whether 
operated by a Participant, by a non-principal broker or sales licensee, 
or by an AVP.
    2. The right to display listings in response to consumer searches 
is limited to display of MLS data supplied by the MLS(s) in which the 
Participant has participatory rights. This does not preclude a firm 
with offices participating in different MLSs from operating a master 
website with links to such offices' VOWs.
    3. Participants' Internet websites, including those operated for 
Participants by AVPs, may also provide other features, information, or 
services in addition to VOWs (including the Internet Data Exchange 
(``IDX'') function).
    4. The display of listing information on a VOW does not require 
separate permission from the Participant whose listings will be 
available on the VOW.
    5. Except as permitted in Sections III and IV, MLSs may not adopt 
rules or regulations that conflict with this Policy or that otherwise 
restrict the operation of VOWs by Participants.

II. Policies Applicable to Participants' VOWs

    1. A Participant may provide brokerage services via a VOW that 
include making MLS active listing data available, but only to consumers 
with whom the Participant has first established a lawful consumer-
broker relationship, including completion of all actions required by 
state law in connection with providing real estate brokerage services 
to clients and customers (hereinafter ``Registrants''). Such actions 
shall include, but are not limited to, satisfying all applicable 
agency, non-agency, and other disclosure obligations, and execution of 
any required agreement(s).
    2. A Participant's VOW must obtain the identity of each Registrant 
and obtain each Registrant's agreement to Terms of Use of the VOW, as 
follows:
    a. A Registrant must provide his or her name and a valid email 
address. The Participant must send an email to the address provided by 
the Registrant confirming that the Registrant has agreed to the Terms 
of Use (described in subsection c below). The Registrant may be 
permitted to access the VOW only after the Participant has verified 
that the email address provided is valid and that Registrant received 
the Terms of Use confirmation.
    b. The Registrant must supply a user name and a password, the 
combination of which must be different from those of all other 
Registrants on the VOW, before being permitted to search and retrieve 
information from the MLS database via the VOW. The user name and 
password may be established by the Registrant or may be supplied by the 
Participant, at the option of the Participant. An email address may be 
associated with only one user name and password. The Registrant's 
password and access must expire on a date certain but may be renewed. 
The Participant must at all times maintain a record of the name and 
email address supplied by the Registrant, and the username and current 
password of each Registrant. Such records must be kept for not less 
than 180 days after the expiration of the validity of the Registrant's 
password. If the MLS has reason to believe that a Participants's VOW 
has caused or permitted a breach in the security of the data or a 
violation of MLS rules related to use by one or more Registrants, the 
Participant shall, upon request, provide to the MLS a copy of the 
record of the name, email address, user name, current password, and 
audit trail, if required, of any Registrant identified by the MLS to be 
suspected of involvement in the violation.
    c. The Registrant must be required affirmatively to express 
agreement to a ``Terms of Use'' provision that requires the Registrant 
to open and review an agreement that provides at least the following:
    i. That the Registrant acknowledges entering into a lawful 
consumer-broker relationship with the Participant;
    ii. That all data obtained from the VOW is intended only for the 
Registrant's personal, non-commercial use;
    iii. That the Registrant has a bona fide interest in the purchase, 
sale, or lease of real estate of the type being offered through the 
VOW;
    iv. That the Registrant will not copy, redistribute, or retransmit 
any of the data or information provided;
    v. That the Registrant acknowledges the MLS's ownership of, and the 
validity of the MLS's copyright in, the MLS database.
    After the Registrant has opened for viewing the Terms of Use 
agreement, a ``mouse click'' is sufficient to acknowledge agreement to 
those terms. The Terms of Use Agreement may not impose a financial 
obligation on the Registrant or create any representation agreement 
between the Registrant and the Participant.
    The Terms of Use agreement shall also expressly authorize the MLS, 
and other MLS Participants or their duly authorized representatives, to 
access the VOW for the purposes of verifying compliance with MLS rules 
and monitoring display of Participants' listings by the VOW.
    d. An agreement entered into at any time between the Participant 
and Registrant imposing a financial obligation on the Registrant or 
creating representation of the Registrant by the Participant must be 
established separately from the Terms of Use, must be prominently 
labeled as such, and may not be accepted solely by mouse click.
    3. A Participant's VOW must prominently display an e-mail address, 
telephone number, or specific identification of another mode of 
communication (e.g., live chat) by which a consumer can contact the 
Participant to ask questions, or get more information, about properties 
displayed on the VOW. The Participant, or a non-

[[Page 47621]]

principal broker or sales licensee licensed with the Participant, must 
be willing and able to respond knowledgeably to inquiries from 
Registrants about properties within the market area served by that 
Participant and displayed on the VOW.
    4. A Participant's VOW must protect the MLS data from 
misappropriation by employing reasonable efforts to monitor for and 
prevent ``scraping'' or other unauthorized accessing, reproduction, or 
use of the MLS database.
    5. A Participant's VOW must comply with the following additional 
requirements:
     a. No VOW shall display listings or property addresses of sellers 
who have affirmatively directed their listing brokers to withhold their 
listing or property address from display on the Internet. The listing 
broker or agent shall communicate to the MLS that a seller has elected 
not to permit display of the listing or property address on the 
Internet. Notwithstanding the foregoing, a Participant who operates a 
VOW may provide to consumers via other delivery mechanisms, such as 
email, fax, or otherwise, the listings of sellers who have determined 
not to have the listing for their property displayed on the Internet.
    b. A Participant who lists a property for a seller who has elected 
not to have the property listing or the property address displayed on 
the Internet shall cause the seller to execute a document that conforms 
to the form attached to this Policy as Appendix A. The Participant 
shall retain such forms for at least one year from the date they are 
signed.
    c. With respect to any VOW that
    (i) Allows third-parties to write comments or reviews about 
particular listings or displays a hyperlink to such comments or reviews 
in immediate conjunction with particular listings, or
    (ii) Displays an automated estimate of the market value of the 
listing (or hyperlink to such estimate) in immediate conjunction with 
the listing,
    The VOW shall disable or discontinue either or both of those 
features as to the seller's listing at the request of the seller. The 
listing broker or agent shall communicate to the MLS that the seller 
has elected to have one or both of these features disabled or 
discontinued on all Participants' websites. Except for the foregoing 
and subject to subparagraph (d), a Participant's VOW may communicate 
the Participant's professional judgment concerning any listing. Nothing 
shall prevent a VOW from notifying its customers that a particular 
feature has been disabled ``at the request of the seller.''
    d. A VOW shall maintain a means (e.g., e-mail address, telephone 
number) to receive comments about the accuracy of any data or 
information that is added by or on behalf of the VOW operator beyond 
that supplied by the MLS and that relates to a specific property 
displayed on the VOW. The VOW operator shall correct or remove any 
false data or information relating to a specific property upon receipt 
of a communication from the listing broker or listing agent for that 
property explaining why the data or information is false. However, the 
VOW operator shall not be obligated to remove or correct any data or 
information that simply reflects good faith opinion, advice, or 
professional judgment.
    e. Each VOW shall refresh MLS data available on the VOW not less 
frequently than every 3 days.
    f. Except as provided elsewhere in this Policy or in MLS rules and 
regulations, no portion of the MLS database may be distributed, 
provided, or made accessible to any person or entity.
    g. Every VOW must display a privacy Policy that informs Registrants 
of the ways in which information obtained from them will be used.
    h. A VOW may exclude listings from display based only on objective 
criteria, including, but not limited to, factors such as geography, 
list price, type of property, cooperative compensation offered by 
listing broker, or whether the listing broker is a Realtor[supreg].
    6. A Participant who intends to operate a VOW must notify the MLS 
of its intention to establish a VOW and must make the VOW readily 
accessible to the MLS and to all MLS Participants for purposes of 
verifying compliance with this Policy and any other applicable MLS 
rules or policies.
    7. A Participant may operate more than one VOW itself or through an 
AVP. A Participant who operates a VOW itself shall not be precluded 
from also operating VOWs in conjunction with AVPs.

III. Policies Applicable to Multiple Listing Services

    1. A Multiple Listing Service shall permit MLS Participants to 
operate VOWs, or to have VOWs operated for them by AVPs, subject to the 
requirements of state law and this Policy.
    2. An MLS shall, if requested by a Participant, provide basic 
``downloading'' of all MLS nonconfidential listing data, including 
without limitation address fields, listings types, photographs, and 
links to virtual tours. Confidential data includes only that which 
Participants are prohibited from providing to customers orally and by 
all other delivery mechanisms. They include fields containing the 
information described in paragraph IV(1) of this Policy, provided that 
sold data (i.e., listing information relating to properties that have 
sold) shall be deemed confidential and withheld from a download only if 
the actual sales prices of completed transactions are not accessible 
from public records. For purposes of this Policy, ``downloading'' means 
electronic transmission of data from MLS servers to a Participant's or 
AVP's server on a persistent basis. An MLS may also offer a transient 
download. In such case, it shall also, if requested, provide a 
persistent download, provided that it may impose on users of such 
(download the approximate additional costs incurred by it to do so.
    3. This Policy does not require an MLS to establish publicly 
accessible sites displaying Participants' listings.
    4. If an MLS provides a VOW-specific feed, that feed must include 
all of the nonconfidential data included in the feed described in 
paragraph 2 above except for listings or property addresses of sellers 
who have elected not to have their listings or addresses displayed on 
the Internet.
    5. An MLS may pass on to those Participants who will download 
listing information the reasonably estimated costs incurred by the MLS 
in adding or enhancing its ``downloading'' capacity to enable such 
Participants to operate VOWs.
    6. An MLS may require that Participants (1) utilize appropriate 
security protection, such as firewalls, as long as such requirement 
does not impose security obligations greater than those employed 
concurrently by the MLS, and/or (2) maintain an audit trail of 
Registrants' activity on the VOW and make that information available to 
the MLS if the MLS has reason to believe that any VOW has caused or 
permitted a breach in the security of the data or a violation of 
applicable MLS rules.
    7. An MLS may not prohibit or regulate display of advertising or 
the identification of entities on VOWs (``branding'' or ``co-
branding''), except to prohibit deceptive or misleading advertising or 
co-branding. For purposes of this provision, co-branding will be 
presumed not to be deceptive or misleading if the Participant's logo 
and contact information (or that of at least one Participant, in the 
case of a VOW established and operated by or for more than one 
Participant) is displayed in immediate conjunction with that of every 
other party, and the logo and

[[Page 47622]]

contact information of all Participants displayed on the VOW is as 
large as the logo of the AVP and larger than that of any third party.
    8. Except as provided in this Policy, an MLS may not prohibit 
Participants from enhancing their VOWs by providing information 
obtained from sources other than the MLS, additional technological 
services (such as mapping functionality), or information derived from 
nonconfidential MLS data (such as an estimated monthly payment derived 
from the listed price), or regulate the use or display of such 
information or technological services on any VOW.
    9. Except as provided in generally applicable rules or policies 
(such as the Realtor[supreg] Code of Ethics), an MLS may not restrict 
the format of data display on a VOW or regulate the appearance of VOWs.
    10. Subject to the provisions below, an MLS shall make MLS listing 
data available to an AVP for the exclusive purpose of operating a VOW 
on behalf of a Participant. An MLS shall make MLS listing data 
available to an AVP under the same terms and conditions as those 
applicable to Participants. No AVP has independent participation rights 
in the MLS by virtue of its right to receive data on behalf of a 
Participant, or the right to use MLS data except in connection with 
operation of a VOW for a Participant. AVP access to MLS data is 
derivative of the rights of the Participant on whose behalf the AVP is 
downloading data.
    a. A Participant, non-principal broker or sales licensee, or AVP 
may establish the AVP's right to receive and use MLS data by providing 
to the MLS a writing in which the Participant acknowledges its or its 
non-principal broker's or sales licensee's selection of the AVP to 
operate a VOW on its behalf.
    b. An MLS may not charge an AVP, or a Participant on whose behalf 
an AVP operates a VOW, more than a Participant that chooses to operate 
a VOW itself (including any fees or costs associated with a license to 
receive MLS data, as described in (g), below), except to the extent 
that the MLS incurs greater costs in providing listing data to the AVP 
than the MLS incurs in providing listing data to a Participant.
    c. An MLS may not place data security requirements or restrictions 
on use of MLS listing data by an AVP that are not also imposed on 
Participants.
    d. An MLS must permit an AVP to download listing information in the 
same manner (e.g., via a RETS feed or via an FTP download), at the same 
times and with the same frequency that the MLS permits Participants to 
download listing information.
    e. An MLS may not refuse to deal directly with an AVP in order to 
resolve technical problems with the data feed. However, the MLS may 
require that the Participant on whose behalf the AVP is operating the 
VOW participate in such communications if the MLS reasonably believes 
that the involvement of the Participant would be helpful in order to 
resolve the problem.
    f. An MLS may not condition an AVP's access to a data feed on the 
financial terms on which the AVP provides the site for the Participant.
    g. An MLS may require Participants and AVPs to execute license or 
similar agreements sufficient to ensure that Participants and AVPs 
understand and agree that data provided by the MLS may be used only to 
establish and operate a VOW on behalf of the Participant and not for 
any other purpose.
    h. An MLS may not (i) prohibit an AVP from operating VOWs on behalf 
of more than one Participant, and several Participants may designate an 
AVP to operate a single VOW for them collectively, (ii) limit the 
number of entities that Participants may designate as AVPs for purposes 
of operating VOWs, or (iii) prohibit Participants from designating 
particular entities as AVPs except that, if an AVP's access has been 
suspended or terminated by an MLS, that MLS may prevent an entity from 
being designated an AVP by another Participant during the period of the 
AVP's suspension or termination.
    i. Except as stated below, an MLS may not suspend or terminate an 
AVP's access to data (a) for reasons other than those that would allow 
an MLS to suspend or terminate a Participant's access to data, or (b) 
without giving the AVP and the associated Participant(s) prior notice 
and the process set forth in the applicable provisions of the MLS rules 
for suspension or termination of a Participant's access. 
Notwithstanding the foregoing, an MLS may immediately terminate an 
AVP's access to data (a) if the AVP is no longer designated to provide 
VOW services to any Participant, (b) if the Participant for whom the 
AVP operates a VOW ceases to maintain its status with the MLS, (c) if 
the AVP has downloaded data in a manner not authorized for Participants 
and that hinders the ability of Participants to download data, or (d) 
if the associated Participant or AVP has failed to make required 
payments to the MLS in accordance with the MLS's generally applicable 
payment policies and practices.
    11. An MLS may not prohibit, restrict, or impede a Participant from 
referring Registrants to any person or from obtaining a fee for such 
referral.

IV. Requirements That MLSs May Impose on the Operation of VOWs and 
Participants

    1. An MLS may impose any, all, or none of the following 
requirements on VOWs but may impose them only to the extent that 
equivalent requirements are imposed on Participants' use of MLS listing 
data in providing brokerage services via all other delivery mechanisms:
    a. A Participant's VOW may not make available for search by or 
display to Registrants the following data intended exclusively for 
other MLS Participants and their affiliated licensees:
    i. Expired, withdrawn, or pending listings.
    ii. Sold data unless the actual sales price of completed 
transactions is accessible from public records.
    iii. The compensation offered to other MLS Participants.
    iv. The type of listing agreement, i.e., exclusive right to sell or 
exclusive agency.
    v. The seller(s) and occupant(s) name(s), phone number(s) and email 
address(es), where available.
    vi. Instructions or remarks intended for cooperating brokers only, 
such as those regarding showing or security of the listed property.
    b. The content of MLS data that is displayed on a VOW may not he 
changed from the content as it is provided in the MLS. MLS data may be 
augmented with additional data or information not otherwise prohibited 
from display as long as the source of such other data or information is 
clearly identified. This requirement does not restrict the format of 
MLS data display on VOWs or display of fewer than all of the listings 
or fewer authorized data fields.
    c. There shall be a notice on all MLS data displayed indicating 
that the data is deemed reliable but is not guaranteed accurate by the 
MLS. A Participant's VOW may also include other appropriate disclaimers 
necessary to protect the Participant and/or the MLS from liability.
    d. Any listing displayed on a VOW shall identify the name of the 
listing firm in a readily visible color, and reasonably prominent 
location, and in typeface not smaller than the median typeface used in 
the display of listing data.
    e. The number of current or, if permitted, sold listings that 
Registrants may view, retrieve, or download on or from a VOW in 
response to an inquiry may be limited to a reasonable number.

[[Page 47623]]

Such number shall be determined by the MLS, but in no event may the 
limit be fewer than 100 listings or 5% of the listings in the MLS, 
whichever is less.
    f. Any listing displayed on a VOW shall identify the name of the 
listing agent.
    2. An MLS may also impose the following other requirements on the 
operation of VOWs:
    a. Participants displaying other brokers' listings obtained from 
other sources, e.g., other MLSs, non-participating brokers, etc. shall 
display the source from which each such listing was obtained.
    b. A maximum period, no shorter than 90 days and determined by the 
MLS, during which Registrants' passwords are valid, after which such 
passwords must be changed or reconfirmed.
    3. An MLS may not prohibit Participants from downloading and 
displaying or framing listings obtained from other sources, e.g., other 
MLSs or from brokers not participating in that MLS, etc., but may 
require either that (i) such information be searched separately from 
listings obtained from other sources, including other MLSs, or (ii) if 
such other sources are searched in conjunction with searches of the 
listings available on the VOW, require that any display of listings 
from other sources identify such other source.

EFFECTIVE DATE: MLSs have until not later than [90 DAYS AFTER ENTRY OF 
THE FINAL JUDGMENT] to adopt rules implementing the foregoing policies 
and to comply with the provisions of section III above, and (2) 
Participants shall have until not later than 180 days following 
adoption and implementation of rules by an MLS in which they 
participate to cause their VOW to comply with such rules.
    See Appendix A for Seller Opt-Out Form.

Appendix A--Seller Opt-Out Form

    1. [Check one]
    a. [Check here] I have advised my broker or sales agent that I do 
not want the listed property to be displayed on the Internet; or
    b. [Check here] I have advised my broker or sales agent that I do 
not want the address of the listed property to be displayed on the 
Internet.
    2. I understand and acknowledge that, if I have selected option a, 
consumers who conduct searches for listings on the Internet will not 
see information about the listed property in response to their search.
-----------------------------------------------------------------------

initials of seller
BILLING CODE 4410-11-M

[[Page 47624]]

Exhibit B
[GRAPHIC] [TIFF OMITTED] TN14AU08.008


[[Page 47625]]


[GRAPHIC] [TIFF OMITTED] TN14AU08.009

BILLING CODE 4410-11-C

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS 
EASTERN DIVISION

    United States Of America, Plaintiff, v. National Association of 
Realtors[supreg], Defendant.

Civil Action No. 05 C 5140, Judge Kennelly

Competitive Impact Statement

    Plaintiff United States of America (``United States''), pursuant to 
Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA'' or 
``Tunney Act''), 15 U.S.C. 16(b)-(h), 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 Proceedings

    Overview. The United States brought this lawsuit against Defendant 
National Association of Realtors[supreg] (``NAR'') on September 8, 
2005, to stop NAR from violating Section 1 of the Sherman Act, 15 
U.S.C. 1, by its suppression of competition from real estate brokers 
who use the Internet to deliver real estate brokerage services. NAR's 
policies singled out these innovative brokers and denied them equal 
access to the for-sale listings that are the lifeblood of competition 
in real estate markets. The settlement will eliminate NAR's 
discriminatory policies and restore even-handed treatment for all 
brokers, including those who use the Internet in innovative ways.
    Virtual Office Websites (``VOWs''). The brokers who have been 
restrained by NAR's policies operate password-protected Web sites 
through which they deliver brokerage services to consumers. NAR has 
referred to these websites as ``virtual office websites'' or ``VOWs.'' 
As discussed below and in the United States' October 4, 2005, Amended 
Complaint, brokers who use VOWs (``VOW brokers'') can operate more 
productively than other brokers, providing high quality brokerage 
services efficiently to consumers.
    Defendant NAR and MLSs. NAR is a trade association whose membership 
includes both traditional, bricks-and-mortar real estate brokers and 
innovative brokers, such as those who operate VOWs. NAR promulgates 
rules for the operation of the approximately 800 multiple listing 
services (``MLSs'') affiliated with NAR. MLSs are joint ventures of 
virtually all real estate brokers in each local or regional area. MLSs 
aggregate information about all properties in the areas they serve that 
are offered for sale through brokers.
    NAR's Challenged Policies. On May 17, 2003, NAR adopted its ``VOW 
Policy,'' which contained rules that obstructed brokers' abilities to 
use VOWs to serve their customers, as described below in Section II. 
After an investigation, the United States prepared to file a complaint 
challenging this Policy.
    On September 8, 2005, NAR repealed its VOW Policy and replaced it 
with its Internet Listings Display Policy (``ILD Policy''). NAR hoped 
that this change would forestall the United States' challenge to its 
policies. NAR's ILD Policy, however, continued to discriminate against 
VOW brokers. As part of its adoption of the ILD Policy, NAR also 
revised and reinterpreted its MLS membership rule, which would have 
excluded some brokers who used VOWs, as detailed below in Section II. 
(NAR's VOW and ILD Policies, including its membership rule revision and 
reinterpretation, are referred to collectively in this Competitive 
Impact Statement as NAR's ``Challenged Policies.'')
    As an association of competitors with market power, NAR's adoption 
of policies that suppress new and efficient competition to the 
detriment of consumers violates Section 1 of the Sherman Act, 15 U.S.C. 
1.
    The Complaint. On September 8, 2005, the day NAR adopted its ILD 
Policy, the United States tiled its Complaint. The United States filed 
an Amended Complaint on October, 4, 2005, that explicitly addressed the 
ILD Policy and membership rule revision

[[Page 47626]]

and reinterpretation. The Amended Complaint alleges that NAR's adoption 
of the Challenged Policies constitutes a contract, combination, and 
conspiracy by and between NAR and its members which unreasonably 
restrains competition in brokerage service markets throughout the 
United States, in violation of Section 1 of the Sherman Act, 15 U.S.C. 
1.
    In the Amended Complaint, the United States asks the Court to order 
NAR to stop violating the law. The United States did not seek monetary 
damages or fines; the law does not provide for these remedies in a case 
of this nature.
    Motion to Dismiss. NAR filed a motion to dismiss the case, claiming 
that, because NAR did not restrain brokers by compelling them to use 
the ``opt-out'' provisions of the Challenged Policies (discussed below 
in Section II.C), those provisions did not constitute actionable 
restraints of trade. NAR also sought dismissal on two procedural 
grounds. On November 27, 2006, the Court issued an opinion denying 
NAR's motion. The Court found that the appropriate analysis under 
Section 1 is not whether individual market actors are restrained but 
instead whether competition is restrained.\1\ The Court also rejected 
NAR's procedural arguments.\2\
---------------------------------------------------------------------------

    \1\ See United States v. NAR, No. 05-C-5140, 2006-2 Trade Cas. 
]75,499, 2006 WL 3434263, at *12.14 (ND. Ill. Nov. 27, 2006).
    \2\ Id. at *6-11 & 15.
---------------------------------------------------------------------------

    Course of the Litigation. Discovery began in December 2005 and 
continued through 2006 and 2007. The case was scheduled for trial on 
July 7, 2008.
    Proposed Settlement. On May 27, 2008, six weeks before trial was 
scheduled to begin, the United States and NAR reached a settlement. The 
United States filed a Stipulation and proposed Final Judgment that are 
designed to eliminate the likely anticompetitive effects of NAR's 
Challenged Policies. The proposed Final Judgment, which is explained 
more fully below, requires NAR to repeal its VOW Policy and its ILD 
Policy and to adopt and apply new rules that do not discriminate 
against brokers who use VOWs to provide brokerage services to their 
customers.
    The United States and NAR have stipulated that the proposed Final 
Judgment may be entered after compliance with the APPA, unless the 
United States withdraws its consent. Entry of the proposed Final 
Judgment would terminate this action, except that this Court would 
retain jurisdiction to construe, modify, and enforce the proposed Final 
Judgment and to punish violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation of 
the Antitrust Laws

A. Description of Competition and Innovation Enabled by VOWs

    In many respects, most VOW brokers operate just like their more 
traditional competitors. They hold brokers' licenses in the states in 
which they operate, they ordinarily are Realtor members of NAR, they 
participate in their local MLS, they tour homes with potential buyer 
customers and guide those customers through the negotiating, 
contracting, and closing process, and they derive revenues from 
commissions earned in connection with real estate transactions.\3\
---------------------------------------------------------------------------

    \3\ The real estate licensing laws of most states allow real 
estate professionals to be licensed as either brokers or as agents 
or sales associates. To offer real estate brokerage services, a 
person licensed as an agent or sales associate must affiliate with 
and be subject to the supervision of a person who holds a broker's 
license. See, e.g., 225 ILCS 454/1-5.
---------------------------------------------------------------------------

    These VOW brokers differ from other brokers in how they use the 
Internet to provide brokerage services. VOW brokers use primarily their 
websites, rather than the efforts of their agents, to educate potential 
buyers about the market.
    This service necessarily involves--as it does with brokers who 
operate in a more traditional fashion providing those MLS listings to 
buyer customers that meet their expressed needs and interests. NAR's 
MLS rules permit brokers to ``reproduce from the MLS compilation and 
distribute to prospective purchasers'' information about properties in 
which the purchaser might have an interest. See NAR, Handbook on 
Multiple Listing Policy, ``Model Rules & Regulations for an MLS 
Operated as a Committee of an Association of Realtors[supreg],'' Sec.  
12.2 (21st ed. 2008). Rather than providing this information to 
prospective buyers by hand delivery, mail, fax, or e-mail--the delivery 
methods historically used by brokers--VOW brokers deliver listings over 
the Internet.\4\
---------------------------------------------------------------------------

    \4\ As the court found in Austin Board of Realtors v. E-Realty, 
Inc., No. 00-CA-154, 2000 WL 34239114, at *4 (W.D. Tex. Mar. 30, 
2000), ``all * * * methods of distribution'' of listings, including 
the Internet, ``are equivalent'' and should be treated equally under 
MLS rules. Until it began developing its VOW Policy, NAR agreed with 
this position. For instance, on January 29, 2001, a top NAR official 
stated in a letter to the president of eRealty (a VOW broker) that 
eRealty's distribution of MLS listings through its VOW was ``in 
compliance with'' MLS rules governing the provision of MLS listings 
to prospective buyers. NAR also published a white paper in December 
2001 in which it described VOWs as an ``emerging, authorized use of 
MLS current listing data,'' and stated that brokers using VOWs are 
subject to the same MLS rules governing the dissemination of 
listings to potential buyers that are applicable to all other 
brokers. The same official reiterated the point in a March 8, 2002, 
interview, stating that NAR's rules ``don't discriminate between 
methods of delivery.''
---------------------------------------------------------------------------

    VOWs help brokers operate more efficiently and increase the quality 
of services they provide. By enabling consumers to search for and 
retrieve relevant MLS listings, VOW brokers can operate more 
efficiently than other brokers. Because customers are educating 
themselves without the broker's expenditure of time, a VOW broker can 
expend less time, energy, and resources educating his or her customers. 
Operating a VOW can also enhance broker competitiveness in working with 
home seller clients by allowing the broker to provide detailed 
information to both potential and active seller clients about the 
apparent interests of buyers who are searching for homes in the 
seller's neighborhood. A study conducted in connection with this case 
showed that one sizeable VOW broker, for example, was able to generate 
many more transactions per agent (controlling for years of agent 
experience) than the traditional brokers it competed against.
    With lower costs and increased productivity, some VOW brokers have 
offered discounted commission rates to their seller clients and rebates 
to their buyer customers.\5\ VOW brokers have already delivered tens of 
millions of dollars in financial benefits directly to their customers. 
Another study conducted in connection with this case revealed evidence 
consistent with a finding that the growth of a VOW broker that offered 
discounts led a sizeable traditional competitor to reduce its 
commissions to consumers.
---------------------------------------------------------------------------

    \5\ Prospective buyers frequently do not enter contractual 
relationships with the broker from whom they receive brokerage 
services and, as such, are considered ``customers,'' rather than 
``clients,'' of the broker.
---------------------------------------------------------------------------

    Innovative brokers with VOWs have enhanced the consumer experience 
by offering tools and information that allow consumers to approach the 
purchase of a home well informed about all aspects of the markets they 
are considering. VOW brokers not only provide their customers access to 
up-to-date MLS listings information, but also offer mapping and 
property-comparison tools and provide school district information, 
crime statistics, and other neighborhood information for consumers to 
consider as they educate themselves regarding the most important 
purchase in the lives of most Americans. Many VOW brokers

[[Page 47627]]

also allow customers to maintain a personal portfolio of properties 
they are monitoring, with the VOWs automatically updating those 
listings as their price or status changes.
    Of course, many traditional brokers provide neighborhood and other 
similar information to their customers, and some even provide such 
information on Internet websites. VOWs can differ, however, in the 
quantity and quality of information that they provide. VOW brokers 
offer their customers complete and up-to-date information and often 
focus on information most valuable to prospective buyers, identifying 
price reductions and the number of days a property has been on the 
market and providing information about comparable recent sales. 
Customers of VOW brokers can obtain information at their own pace, on 
their own time, and in the form in which they are most interested in 
receiving it.
    Some VOW brokers have established brokerage businesses that focus 
solely on the high technology aspects of brokerage services that can be 
delivered over the Internet. Like other VOW brokers, these ``referral 
VOWs'' educate prospective buyers about the market in which they are 
considering a purchase by providing buyers MLS listings and other 
information on a VOW. When the buyer is ready to tour a home, the 
referral VOW broker can direct the buyer to brokers or agents who 
specialize in guiding the buyer on tours of homes and advising them 
during the negotiating, contracting, and closing process. In some 
instances, referral VOW brokers have obtained a referral fee 
(contingent on closing) for delivering educated buyer customers to the 
brokers or agents who received the referrals. Some referral VOW brokers 
have offered Commission rebates or other financial benefits to their 
customers.

B. Description of the Defendant and Its Activities

    Chicago-based NAR is a trade association that establishes and 
enforces policies and professional standards for its over one million 
real estate professional members and 1,400 local and state Boards or 
Associations of Realtors[supreg] (``Member Boards''). NAR promulgates 
rules governing the operation of the approximately 800 MLSs that are 
affiliated with NAR through their ownership or operation by NAR's 
Member Boards.\6\ In order to encourage adherence to its policies, NAR 
can deny coverage under its errors and omissions insurance (i.e., 
professional liability insurance) policy to any Member Board that 
maintains MLS rules not in compliance with NAR's policies.
---------------------------------------------------------------------------

    \6\ There are approximately 1,000 MLSs in the United States, 
approximately 800 of which are affiliated with NAR and subject to 
NAR's rules. The rules of the remaining approximately 200 MLSs are 
not at issue in this lawsuit, although, as a practical matter, many 
MLSs that are not affiliated with NAR adopt rules that conform 
substantially to NAR's. Some non-NAR MLSs, such as the MLS serving 
the Columbia, South Carolina, area and the MLS serving the Hilton 
Head, South Carolina, area, adopted and maintained rules that have 
been the subject of antitrust enforcement. On May 2, 2008, the 
United States brought an antitrust action against the MLS in 
Columbia alleging that its rules restrain competition among real 
estate brokers in that area and likely harm consumers. See Complaint 
in United States v. Consolidated Multiple Listing Service, Inc., No 
3:08-cv-01786-SB (D.S.C. May 2, 2008), available at http://www.usdoj.gov/atr/cases/f232800/232803.htm. The United States 
challenged similar allegedly anticompetitive rules imposed by the 
MLS in Hilton Head, South Carolina, also not affiliated with NAR. 
See Complaint in United States v. Multiple Listing Service of Hilton 
Head Island, Inc., No. 9:07-cv-03435-SB (D.S.C. Oct. 16, 2007), 
available at http://www.usdoj.gov/atr/cases/t226800/226869.htm. The 
MLS in Hilton Head agreed to settle the case by repealing the 
challenged rules and agreeing to other conduct restrictions, and the 
court entered the Final Judgment in the case of May 28, 2008. See 
Final Judgment in United States v. Multiple Listing Service of 
Hilton Head Island, Inc., No. 9:07-cv-03435-SB (D.S.C, May 28, 
2008), available at http://www.usdoj.gov/atr/cases/f233900/233901.htm.
---------------------------------------------------------------------------

    MLSs are joint ventures among virtually all real estate brokers 
operating in local or regional areas.\7\ NAR's MLS rules require its 
members to submit to the MLS, generally within two to three days of 
obtaining a listing, information about each property listed for sale 
through a broker member. By doing so, the broker promotes his or her 
seller client's listing to all other brokers in the MLS, who can 
provide information about the listing to their buyer customers. Listing 
brokers create incentives for other MLS members to try to find buyers 
for their listed properties by submitting with each new listing an 
``offer of cooperation and compensation,'' identifying the amount 
(usually specified as a percentage of the listing broker's commission) 
that the listing broker will pay to any other broker who finds a buyer 
for the property.
---------------------------------------------------------------------------

    \7\ Many MLSs draw brokers and their listed properties from a 
single local community. Others are substantially larger, with some 
covering entire states and others--such as Metropolitan Regional 
Information Systems, Inc., which serves the District of Columbia, 
and parts of the states of Maryland, Virginia, West Virginia, and 
Pennsylvania-serving multi-state regions. As the Amended Complaint 
alleges, the relevant geographic markets in which brokers compete 
are local and normally no larger than the service area of the MLS or 
MLSs in which they participate.
---------------------------------------------------------------------------

    Brokers regard participation in their local MLS to be critical to 
their ability to compete with other brokers for home sellers and 
buyers. By participating in the MLS, brokers can promise their seller 
clients that the information about the seller's property can be 
immediately made available to virtually all other brokers in the area. 
Brokers who work with buyers can likewise promise their buyer customers 
access to the widest possible array of properties listed for sale 
through brokers. An MLS is thus a market-wide joint venture of 
competitors that possesses substantial market power: To compete 
successfully, a broker must be a member; and to be a member, a broker 
must adhere to any restrictions that the MLS imposes.

C. Description of the Alleged Violation

1. The Challenged Policies
    NAR's Challenged Policies discriminate against and restrain 
competition from brokers who use VOWs. In its Challenged Policies, NAR 
denied VOW brokers the ability to use their VOWs to provide customers 
access to the same MLS listings that the customer could obtain from all 
other brokers by other delivery methods. NAR did so by allowing a 
listing broker to ``opt out'' and keep his or her client's listings 
form being displayed on a competitor's VOW.
    On May 17, 2003, NAR adopted its ``VOW Policy.'' As the Amended 
Complaint alleges, the VOW Policy, most significantly, allowed brokers 
to opt out of VOWs, withholding their seller-clients' listings from 
display on VOWs. The opt-out provisions discriminated against VOW 
brokers because NAR's rules do not otherwise permit one broker to 
dictate how competitors can convey his or her listings to customers. 
The VOW Policy permitted opt out either against all VOW brokers 
(``blanket'') or against a particular VOW broker (``selective'').
    The Amended Complaint also alleges that the VOW Policy's ``anti-
referral'' rule restrained competition by prohibiting VOW brokers from 
receiving any payment for referring prospective buyer customers to 
other brokers. The prospect that brokers could use VOWs to support 
referral-based businesses was a source of industry antipathy to VOWs, 
and NAR's rules singled out VOW brokers for a ban on referring 
customers for a fee.
    NAR's VOW Policy, as alleged in the Amended Complaint, also 
restrained competition from VOW brokers by prohibiting them from 
selling advertising on pages of their VOWs on which the VOW broker 
displayed any listings, and by permitting MLSs to degrade the data they 
provide to VOWs, thus preventing the use of popular technological 
features offered by many VOW brokers.

[[Page 47628]]

    NAR repealed its VOW Policy and replaced it with its ILD Policy on 
September 8, 2005, the day the United States filed its initial 
Complaint. As alleged in the Amended Complaint, NAR's ILD Policy 
continued to discriminate against VOW brokers by permitting their 
competitors a blanket opt out where they could withhold their listings 
from display on all VOWs.\8\ Although the ILD Policy did not include an 
explicit anti-referral rule, NAR revised and reinterpreted its rule on 
MLS membership to prevent brokers who operate referral VOWs from 
becoming members of the MLS and obtaining access to MLS listings. The 
Amended Complaint also alleges that the ILD Policy continued to permit 
MLSs to downgrade the data they provide to VOWs and to restrict VOW 
brokers' co-branding or advertising relationships with third parties.
---------------------------------------------------------------------------

    \8\ NAR did delete from its ILD Policy its rule allowing brokers 
to selectively opt out against particular VOW brokers.
---------------------------------------------------------------------------

2. Effects of the Challenged Policies
    As discussed above, NAR's rules permit brokers to show prospective 
buyers all MLS listings in which the buyers might have an interest. For 
most brokers, this means that they can respond to a request from a 
buyer customer by delivering responsive listings by whatever delivery 
method the broker and customer choose. NAR's opt-out provisions deny 
this right only if the method of delivery selected by the broker and 
the customer is a VOW. Thus, NAR's rules restrain VOW-operating brokers 
from competing in a way that is efficient and desired by many 
customers.
    Even if no broker uses the opt-out device, its existence renders a 
VOW broker unable to promise customers access to all relevant MLS 
listings, materially disadvantaging brokers who use a VOW to compete. 
When opt out occurs, a VOW broker is further disadvantaged because it 
cannot deliver complete MLS listings to customers through its VOW. 
Finally, with the threat of opt outs constantly hanging over it, any 
VOW broker contemplating a pro-consumer initiative would have to weigh 
the prospect of an angry response from its incumbent competitors.
    Opt outs were an empirical reality. Although the United States' 
investigation became public just a few months after NAR adopted its VOW 
Policy, the United States discovered over fifty instances of broker opt 
outs under a wide variety of circumstances in fourteen diverse markets. 
Brokers opted out of VOWs in large markets (e.g., Detroit and 
Cleveland), medium markets (e.g., Des Moines), and small markets (e.g., 
Emporia (Kansas), Hays (Kansas), and York (Pennsylvania)). In some 
markets (Emporia and Hays), virtually all brokers opted out. In others, 
only one or a few opted out (e.g., Detroit, York, Maine). Opt outs 
occurred in a market with one dominant broker (Des Moines), in markets 
with only a small number of broker competitors (Emporia and Hays), and 
in markets with hundreds of brokers (Detroit). In some markets (e.g., 
Des Moines, Detroit, Cleveland, York, and Jackson (Wyoming)), large 
brokers opted out. In others (e.g., Marathon (Florida) and Hudson (New 
York)), only relatively small brokers opted out. Brokers opted out in 
markets in which price competition is highly restricted by the state 
(Kansas, which prohibits brokers from providing commission rebates to 
home buyers), as well as in markets in which the state does not 
restrict such price competition (Michigan). Opt outs occurred in 
circumstances that imply they were independent business decisions by 
the opting-out brokers (e.g., Detroit) and in circumstances in which 
opt-out forms were filled out by almost all brokers in the same room at 
the same lime (Emporia).
    NAR's Challenged Policies also obstruct the operation of referral 
VOWs. NAR's VOW Policy prohibited referral fees explicitly and 
directly. NAR's 2005 modification to the requirements of MLS membership 
denied MLS membership and--of greatest significance to a referral VOW 
access to MLS data to any broker whose business focused exclusively on 
educating customers on a VOW and referring those customers to other 
brokers to receive other in-person brokerage services. Each of these 
policies prevents two brokers from working together in an innovative 
and efficient way, with a VOW broker attracting new business and 
educating potential buyers about the market, and the other broker 
guiding the buyer through home tours and the negotiating, contracting, 
and closing process.
    As discussed above, NAR's Challenged Policies also permit MLSs to 
downgrade the MLS data feed provided to VOW brokers, which limits the 
consumer-friendly features VOW brokers could provide through their 
VOWs. The Challenged Policies also allow MLSs to prohibit VOW brokers 
from establishing some advertising or co-branding relationships with 
third parties, limiting the freedom of VOW brokers to operate their 
businesses as they desire and enabling MLSs (which are controlled by a 
VOW broker's competitors) to micromanage the appearance of brokers' 
VOWs.
3. The Challenged Policies Violate the Antitrust Laws
    NAR's Challenged Policies violate Section 1 of the Sherman Act, 
which prohibits unreasonable restraints on competition. The Challenged 
Policies were the product of an agreement among a group of competitors 
(the members of NAR) mandating how brokers could use VOWs to compete 
and unreasonably restraining competition from VOW brokers. Competition 
from VOW brokers had posed a threat to the established order in the 
real estate industry. Yet it was clear from prior litigation that 
antitrust law would not allow incumbent brokers simply to prevent VOW 
brokers from providing any listings to customers through their VOWs. 
See Austin Board of Realtors v. e-Realty, Inc., No. 00-CA-154, 2000 WL 
34239114 (W.D. Tex. Mar. 30, 2000). Instead, NAR's Challenged Policies 
restrained competition from VOW brokers by denying them full access to 
MLS listings and restricting how VOW brokers could do business.
    While an MLS, like other joint ventures with market power, can have 
reasonable membership restrictions related to a legitimate, 
procompetitive purpose, it cannot create rules that unreasonably impede 
competition among brokers and harm consumers. See United States v. 
Realty Multi-List, 629 F.2d 1351, 1371 (5th Cir. 1980). NAR's 
Challenged Policies restrain competition because they dictate how the 
MLS's broker-members could compete--specifically, restricting how they 
could compete using a VOW. See Id. at 1383-85 (finding MLS rule 
precluding part-time brokerage to be unlawful); Cantor v. Multiple 
Listing Serv. of Dutchess County. Inc., 568 F. Supp. 424, 430-31 
(S.D.N.Y. 1983) (finding that MLS yard sign restriction violated 
Section 1 of the Sherman Act because it ``substantially impair[ed] [the 
plaintiffs'] freedom to conduct their businesses as they see fit'' and 
``vitiated any competitive advantage which plaintiffs endeavored to 
obtain'' through association with a national franchisor); see also 
National Soc'y of Prof'l Eng'rs, 435 U.S. 679,695 (1978) (condemning 
trade association ban on competitive bidding by members). Similarly, 
NAR's Challenged Policies restrain competition because they impede the 
operations of a particularly efficient class of competitors: VOW 
brokers. See Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 
1159 (3d Cir, 1993) (upholding verdict against railroads that 
``block[ed] the entry of low cost

[[Page 47629]]

competitors''); see also RE/MAX v. Realty One, Inc., 173 F.3d 995, 1014 
(6th Cir. 1999) (upholding Sherman Act Sec.  1 claim where competitors 
``impose[d] additional costs'' on innovative entrant). NAR's Challenged 
Policies also restrain competition by denying consumers the full MLS 
listings information (including valuable information such as sold data 
and data fields such as days on market) that consumers want. See FTC v. 
Indiana Fed'n of Dentists, 476 U.S. 447, 457, 462 (1986) (``The 
Federation's collective activities resulted in the denial of the 
information the customers requested in the form they requested it, and 
forced them to choose between acquiring that information in a more 
costly manner or forgoing it altogether. * * * The Federation is not 
entitled to pre-empt the working of the market by deciding for itself 
that its customers do not need that which they demand.'')
    Moreover, NAR's Challenged Policies constitute an unreasonable 
restraint on competition because they produced no procompetitive 
benefits that justified the restraints. Although NAR claimed that the 
Challenged Policies were essential to the continued existence of MLSs, 
those MLSs without the Challenged Policies functioned just as well 
without them. Given the market power of the MLS, brokers believe it 
would amount to economic suicide for them to leave the MLS.

D. Harm From the Alleged Violation

    Taken together, NAR's Challenged Policies obstruct innovative 
brokers' use of efficient, Internet-based tools to provide brokerage 
services to customers and clients. The Challenged Policies inhibit VOW 
brokers from achieving the operating efficiencies that VOWs can make 
available and likely diminish the high-quality and low-priced services 
offered to consumers by VOW brokers. The result is that the Challenged 
Policies, products of agreements among competitor brokers, likely would 
deter, delay, or prevent the benefits of innovation and competition 
from reaching consumers, and thus violate Section 1 of the Sherman Act, 
15 U.S.C. 1.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment embodies the fundamental principle that 
an association of competing brokers, operating an MLS, cannot use the 
aggregated power of the MLS to discriminate against a particular method 
of competition (in this case, VOWs). The proposed Final Judgment will 
end the competitive harm resulting from NAR's Challenged Policies and 
will allow consumers to benefit from the enhanced competition that VOW 
brokers can provide. The proposed Final Judgment requires NAR to repeal 
its VOW and ILD Policies and to replace them with a ``Modified VOW 
Policy'' (attached to the proposed Final Judgment as Exhibit A) that 
makes it clear that brokers can operate VOWs without interference from 
their rivals.\9\ With respect to any issues concerning the operation of 
VOWs that are not explicitly addressed by the Modified VOW Policy, the 
proposed Final Judgment's general nondiscrimination provisions 
apply.\10\
---------------------------------------------------------------------------

    \9\ See proposed Final Judgment, ]] V.A-V.D. Under the Modified 
VOW Policy, with the consent of their supervising broker, agents and 
sales associates are also expressly permitted to operate VOWs. 
Brokers cannot agree, by MLS rule or otherwise, to ban VOWs operated 
by agents or sales associates. See Modified VOW Policy, ] I.1.b.
    \10\ See proposed Final Judgment, ]] IV.A, IV.B, & IV.C; see 
also id., ] V.F (requiring NAR to deny insurance coverage to any 
Member Board that maintains rules at odds with ] IV of the proposed 
Final Judgment).
---------------------------------------------------------------------------

    The Modified VOW Policy does not allow brokers to opt out and 
withhold their clients' listings from VOW brokers.\11\ This change 
eliminates entirely the most egregious impediment to VOWs that was 
contained in the Challenged Policies.\12\ Under the Modified VOW 
Policy, the MLS must provide to a VOW broker for display on the VOW all 
MLS listings information that brokers are permitted to provide to 
customers by all other methods of delivery.\13\
---------------------------------------------------------------------------

    \11\ See Modified VOW Policy, ] I.4.
    \12\ The Modified VOW Policy does allow an individual home 
seller to direct that information about his or her own home not 
appear on any Internet Web sites, id., ] II.5.a, recognizing the 
legitimate interests of a seller to protect his or her privacy and 
not to expose information about his or her property or the fact that 
it is on the market to the public on the Internet. It also allows a 
home seller to request that a VOW broker who permits customers to 
provide written reviews of properties disable that feature as to the 
seller's listing. Id., ] II.5.c. Such comments--which can be 
anonymous--have no exact analogue in the bricks-and-mortar world. 
Unlike books, music, or other consumer goods, reviews of which can 
provide useful information to other potential purchasers of the same 
items, the uniqueness of each individual home creates an opportunity 
for an interested buyer (or his or her broker) to attempt to 
manipulate the market by providing a negative review in hopes of 
deterring other buyers from visiting or making an offer on the home. 
An individual home seller is also permitted under the Modified VOW 
Policy to request that an automated home valuation feature provided 
by a VOW broker be disabled as to the seller's individual property, 
although the VOW broker is permitted to state on the VOW that the 
seller requested that this type of information not be presented on 
the VOW about his or her property. See id. Though such valuations 
might be provided in a bricks-and-mortar environment, they would not 
likely be provided without evaluation, comment, or input from an 
agent or sales associate. The Modified VOW Policy also provides a 
mechanism for sellers to correct any false information about their 
property that a VOW adds, Id., ] II.5.d, consistent with the general 
responsibility of any broker (VOW or otherwise) to present accurate 
information.
    \13\ See Id., ] III.2. The information that MLSs must provide to 
VOW brokers for display on their VOWs includes information about 
properties that have sold (except in areas where the actual sales 
prices of homes is not accessible from public records) and all other 
information that brokers can provide to customers by any method, 
including by oral communications. Id.
---------------------------------------------------------------------------

    The Modified VOW Policy that NAR must adopt under the proposed 
Final Judgment also permits brokers to operate referral VOWs. It 
expressly prohibits MLSs from impeding VOW brokers from referring 
customers to other brokers for compensation.\14\ It also provides two 
avenues by which a broker desiring to serve customers through a 
referral VOW may do so: As an ``Affiliated VOW Partner'' (``AVP'') and 
as a member who directly serves some customers.
---------------------------------------------------------------------------

    \14\ Id., ] III.11.
---------------------------------------------------------------------------

    Under the Modified VOW Policy, a broker who desires to operate a 
referral business can partner as an AVP with a network of brokers and 
agents to whom the AVP will ultimately refer educated buyer customers 
who are ready to tour homes and receive in-person brokerage 
services.\15\ The Modified VOW Policy requires MLSs to provide complete 
MLS listings information to any broker designated by another broker to 
be an AVP that will operate a VOW on the designating broker's 
behalf.\16\ The MLS must provide listings information to the AVP on the 
same terms and conditions on which the MLS would provide listings to 
the broker who designated the AVP to operate the VOW.\17\ This 
provision will allow referral VOWs to partner with brokers or agents, 
obtain access to MLS data to operate their referral VOWs, and provide 
the efficiencies that come from operating a

[[Page 47630]]

VOW to the brokers and agents with whom they partner.
---------------------------------------------------------------------------

    \15\ Nothing in the Modified VOW Policy requires an AVP to hold 
a broker's license. An unlicensed technology company would be 
permitted under the Modified VOW Policy to host a VOW for a broker 
or brokers (or for one or more agents or sales associates, with the 
consent of their supervising brokers). When a licensed broker 
operates VOWs as an AVP in conjunction with other brokers (or their 
agents or sales associates), the AVP can perform services for which 
a broker's license may be required, including answering questions 
for customers who register on the VOW and referring customers to the 
brokers and agents or sales associates for whom the AVP operates the 
VOWs. See, e.g., 225 ILCS 454/1-10 (describing the activities for 
which a broker's license is required in Illinois, including 
``assist[ing] or direct[ing] in procuring or referring of 
prospects'').
    \16\ Modified VOW Policy, ]] I.1.a & III.10. An AVP's rights to 
obtain listings information from the MLS is derivative of the rights 
of the brokers for whom the AVP is operating VOWs. Id., ] III.10. 
The AVP would not itself be an MLS member entitled to MLS access 
directly.
    \17\ Id., ] III.10.
---------------------------------------------------------------------------

    Under the proposed Final Judgment, a broker who works directly with 
some buyers and sellers, but who also wants to operate a VOW and focus 
on referrals, can become a member of the MLS and use MLS data as a 
member, including for its referral VOW. The Final Judgment permits 
NAR's Member Boards to implement the new requirements for MLS 
membership that NAR originally adopted with its ILD Policy,\18\ but an 
interpretive Note (see Exhibit B to the proposed Final Judgment) 
explains that the new membership rule is not to be interpreted to 
restrain VOW competition.\19\
---------------------------------------------------------------------------

    \18\ Proposed Final Judgment, ] VI.A.
    \19\ Under the interpretative Note included in Exhibit B to the 
proposed Final Judgment, if a VOW broker actively endeavors to 
obtain some seller clients for whom it will market properties or 
some buyer customers to whom it will offer in-person brokerage 
services, that VOW broker will be permitted to operate a referral 
VOW and refer to other brokers the educated customers he or she does 
not serve directly.
---------------------------------------------------------------------------

    Finally, the Modified VOW Policy prohibits MLSs from using an 
inferior data delivery method to provide MLS listings to VOW brokers 
\20\ and from unreasonably restricting the advertising and co-branding 
relationships VOW brokers establish with third parties.\21\ VOW 
brokers, under the Modified VOW Policy, will be free from MLS 
interference in the appearance and features of their VOWs.\22\
---------------------------------------------------------------------------

    \20\ See Modified VOW Policy, ] III.2 (``For purposes of this 
Policy, `downloading' means electronic transmission of data from MLS 
servers to a Participant's or AVP's server on a persistent basis'' 
(emphasis added)).
    \21\ See Id., ] III.7.
    \22\ See Id., ] III.8 & III.9.
---------------------------------------------------------------------------

    NAR is required by the Final Judgment to direct its Member Boards 
to adopt rules implementing the Modified VOW Policy within ninety days 
of this Court's entry of the Final Judgment.\23\ To ensure that its 
Member Boards adopt, maintain, and enforce rules implementing the 
Modified VOW Policy, NAR is required to deny errors and omissions 
insurance coverage to any Member Board that refuses to do so and 
forward to the United States any complaints it receives concerning the 
failure of any Member Board (or any MLS owned or operated by any Member 
Board) to abide by or enforce those rules.\24\ The proposed Final 
Judgment also broadly prohibits NAR from adopting any other rules that 
impede the operation of VOWs or that discriminate against VOW brokers 
in the operation of their VOWs.\25\
---------------------------------------------------------------------------

    \23\ Proposed Final Judgment, ] V.D.
    \24\ Id., ]] V.E & V.H.
    \25\ Id., ]] IV.A & IV.B.
---------------------------------------------------------------------------

    Finally, the proposed Final Judgment, applicable for ten years 
after its entry by this Court,\26\ establishes an antitrust compliance 
program under which NAR is required to review its Member Board's rules 
for compliance with the proposed Final Judgment, to provide materials 
to its Member Boards that explain the proposed Final Judgment and the 
Modified VOW Policy, and to hold an annual program for its Member 
Boards and their counsel discussing the proposed Final Judgment and the 
antitrust laws.\27\ The proposed Final Judgment expressly places no 
limitation on the United States' ability to investigate or bring an 
antitrust enforcement action in the future to prevent harm to 
competition caused by any rule adopted or enforced by NAR or any of its 
Member Boards.\28\
---------------------------------------------------------------------------

    \26\ Id., ] X.
    \27\ Id., ] V.G.
    \28\ Id., ] IX.
---------------------------------------------------------------------------

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 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist 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 NAR 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 sixty (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 sixty (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 he considered by the United States, which remains free to withdraw 
its consent to the proposed Final Judgment at any time prior to the 
Court's entry of judgment. The comments and the response of the United 
States will be filed with the Court and published in the Federal 
Register.
    Written comments should be submitted to: John R. Read, Chief, 
Litigation III Section, Antitrust Division, United States 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.\29\
---------------------------------------------------------------------------

    \29\ Proposed Final Judgment, ] VIII.
---------------------------------------------------------------------------

VI. Alternatives to the Proposed Amended Final Judgment

    At several points during the litigation, the United States received 
from defendant NAR proposals or suggestions that would have provided 
less relief than is contained in the proposed Final Judgment. These 
proposals arid suggestions were rejected.
    The United States considered, as an alternative to the proposed 
Final Judgment, proceeding with the full trial on the merits against 
NAR that was scheduled to commence on July 7, 2008. The United States 
is satisfied that the relief contained in the proposed Final Judgment 
will quickly establish, preserve, and ensure that consumers can benefit 
from the enhanced brokerage service competition brought by VOW brokers 
as effectively as any remedy the United States likely would have 
obtained after a successful trial.

VII. Standard of Review Under the APPA for 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 sixty-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)(l). 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

[[Page 47631]]

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 United States 
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); see generally United States v. SBC 
Commc'ns, Inc., 489 F. Supp. 2d I (D.D.C. 2007) (assessing public 
interest standard under the Tunney Act).\30\
---------------------------------------------------------------------------

    \30\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. (Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(l) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at II (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    As the United States 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 set forth in the United States' complaint, whether the 
decree is sufficiently clear, whether enforcement mechanisms are 
sufficient, and whether the decree may positively harm third parties. 
See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37,40 (D.D.C. 2001). Courts have held that:

    [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. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\31\ In 
determining whether a proposed settlement is in the public interest, a 
district court ``must accord deference to the government's predictions 
about the efficacy of its remedies, and may not require that the 
remedies perfectly match the alleged violations.'' SBC' Commc'ns, 489 
F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 (noting the need 
for courts to be ``deferential to the government's predictions as to 
the effect of the proposed remedies''); United States v. Archer-
Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that 
the court should grant due respect to the United States' prediction as 
to the effect of proposed remedies, its perception of the market 
structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \31\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the 
court is constrained to ``look at the overall picture not 
hypercritically, nor with a microscope, but with an artist's 
reducing glass''). See generally Microsoft, 56 F.3d at 1461 
(discussing whether ``the remedies [obtained in the decree are] so 
inconsonant with the allegations charged as to fall outside of the 
`reaches of the public interest' '').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be approved 
even if it falls short of the remedy the court would impose on its own, 
as long as it falls within the range of acceptability or is `within the 
reaches of public interest.' '' United States v. Am. Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also 
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 
1985) (approving the consent decree even though the court would have 
imposed a greater remedy). To meet this standard, the United States 
``need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 
489 F. Supp. 2d at 17.
    Moreover, the courts 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. 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. Id. 
at 1459-60. As the United States District Court for the District of 
Columbia recently confirmed in SBC communications, courts ``cannot look 
beyond the complaint in making the public interest determination unless 
the complaint is drafted so narrowly as to make a mockery of judicial 
power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding 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). This language effectuates what 
Congress intended when it 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 
Senator Tunney). Rather, the procedure for the public interest 
determination is left to the discretion of the court, with the 
recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp. 2d at 11.\32\
---------------------------------------------------------------------------

    \32\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt 
failure of the government to discharge its duty, the Court, in 
making its public interest finding, should * * * carefully consider 
the explanations of the government in the competitive impact 
statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 
6(1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'').

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[[Page 47632]]

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.

Respectfully submitted,
s/David C. Kully

-----------------------------------------------------------------------

Craig W. Conrath,

David C. Kully,

U.S. Department of Justice,
Antitrust Division,
450 5th Street, NW.; Suite 4000,
Washington, DC 20530,
Tel: (202) 307-5779,
Fax: (202) 307-9952.

Dated: June 12, 2008

Certificate of Service

    I, David C. Kully, hereby certify that on this 12th day of June, 
2008, I caused a copy of the foregoing Competitive Impact Statement to 
be served by ECF on counsel for the defendant identified below. Jack R. 
Bierig, Sidley Austin LLP, One South Dearborn Street, Chicago, IL 
60603, (312) 853-7000, <a href="/cdn-cgi/l/email-protection#2349414a46514a4463504a474f465a0d404c4e"><span class="__cf_email__" data-cfemail="bdd7dfd4d8cfd4dafdced4d9d1d8c493ded2d0">[email protected]</span></a>.

s/David C. Kully
-----------------------------------------------------------------------

David C. Kully
[FR Doc. E8-17800 Filed 8-13-08; 8:45 am]
BILLING CODE 4410-11-M


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