Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Notices 47613 

Mecklenburg County 

La Crosse Hotel, 201 Central Ave., La Crosse, 

08000876 

Petersburg Independent city 

Commerce Street Industrial Historic District, 

Commerce, Upper Appomattox, West, 

Dunlop, and South Sts., Petersburg, 

08000870 

Prince Edward County 

High Bridge, Appomattox River, Farmville, 

08000875 

Richmond Independent city 

Hunt-Sitterding House, 901 Floyd Ave., 

Richmond, 08000877 

Stafford County 

Union Church and Cemetery, Carter St. and 

Butler Rd., Falmouth, 08000896 

Winchester Independent city 

Winchester Coca-Cola Bottling Works, 1720 

Valley Ave., Winchester, 08000895 

Winchester Historic District (Boundary 

Increase), 300–400 blocks of N. Cameron 

St., 12 Clark St., 110 E. Fairfax La. and 145 

N. Baker St., Winchester, 08000874 

Wythe County 

St. John’s Episcopal Church, 275 E. Main St., 

Wytheville, 08000894 

Request for REMOVAL has been made for 

the following resources: 

IOWA 

Black Hawk County 

Forrest Milling Company Oatmeal Mill, N. 

Main St., Freeport vicinity, 800001430 

Mahaska County 

Bridge near New Sharon, Co. Rd. 629 over 

drainage ditch, New Sharon, 98000505 

Scott County 

Burtis-Kinball House Hotel, 210 E. 4th St., 

Davenport, 79003696 

Van Buren County 

Keosauqua Bridge, IA 1 over Des Moines 

River, Keosauqua, 98999476 

Winneshiek County 

Decorah East Side Elementary and Middle 

School, 210 Vernon St., Decorah, 98991204 

Freeport Bowstring Arch Bridge, Spans 

Upper Iowa River, Freeport vicinity, 

84001407 

[FR Doc. E8–18862 Filed 8–13–08; 8:45 am] 

BILLING CODE 4312–51–P 

INTERNATIONAL TRADE 

COMMISSION 

Notice of Appointment of Individuals 

To Serve as Members of Performance 

Review Board 

AGENCY: United States International 

Trade Commission. 

ACTION: Appointment of Individuals To 

Serve as Members of Performance 

Review Board. 

DATES: Effective: July 4, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia Roscoe, Director of Human 

Resources, U.S. International Trade 

Commission, (202) 205–2651. 

SUPPLEMENTARY INFORMATION: The 

Chairman of the U.S. International 

Trade Commission has appointed the 

following individuals to serve on the 

Commission’s Performance Review 

Board (PRB): 

Chair of the PRB: Vice-Chairman 

Daniel R. Pearson. 

Vice-Chair of the PRB: Dean A. 

Pinkert. 

Member: David Beck. 

Member: Robert G. Carpenter. 

Member: Robert B. Koopman. 

Member: Karen Laney-Cummings. 

Member: Lynn I. Levine. 

Member: James M. Lyons. 

Member: Stephen A. McLaughlin. 

Member: Robert A. Rogowsky. 

Member: Lyn M. Schlitt. 

This notice is published in the 

Federal Register pursuant to the 

requirement of 5 U.S.C. 4314(c)(4). This 

notice replaces the notice published at 

73 FR 46334 (August 8, 2008); that 

notice is withdrawn. Hearing-impaired 

individuals are advised that information 

on this matter can be obtained by 

contacting our TDD terminal on (202) 

205–1810. 

Issued: August 8, 2008. 

By order of the Chairman. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E8–18768 Filed 8–13–08; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. National Association 

of Realtors; Proposed Final Judgment 

and Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the Northern District 

of Illinois in United States of America 

v. National Association of Realtors, 

No. 05–C–5140. On September 8, 2005, 

the United States filed a Complaint 

alleging that the National Association of 

Realtors (‘‘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. 

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 


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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 optout right would be ‘‘abused beyond 

belief’’ as traditional brokers selectively 

withhold listings from particular VOWbased 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 


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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 NARaffiliated 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, VOWoperating 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 passwordprotected 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, Internetbased business models present a 

competitive challenge to brokers who 

provide listings to their customers only 

by traditional methods. Many brick-andmortar 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 


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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 optout 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 abovereferenced 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 brickand-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 Internetbased 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 abovereferenced 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. 


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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 antireferral 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/ lllllllllllllllllll

J. Bruce McDonald, 

Deputy Assistant Attorney General. 

/s/ lllllllllllllllllll

J. Robert Kramer II, 

Director of Operations. 

/s/ lllllllllllllllllll

Patrick J. Fitzgerald, 

United States Attorney, Northern District of 

Illinois, by Linda Wawzenski, Assistant 

United States Attorney. 

/s/ lllllllllllllllllll

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/ lllllllllllllllllll

Linda Wawzenski 

UNITED STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

United States of America, Plaintiff, v. 

NATIONAL ASSOCIATION OF 

REALTORS, 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 (‘‘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 or 

Association of Realtors, 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 or 

Association of Realtors. 

H. ‘‘Modified VOW Policy’’ means the 

policy attached to this Final Judgment 

as Exhibit A. 

I. ‘‘NAR’’ means the National 

Association of Realtors, 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, 


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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 


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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 

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 


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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 nonVerDate Aug<31>2005 15:57 Aug 13, 2008 Jkt 214001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\14AUN1.SGM 14AUN1

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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. 

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 


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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 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. 


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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, nonparticipating 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. 

lllllllllllllllllllll

initials of seller 

BILLING CODE 4410–11–M 


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Exhibit B 


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Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Notices 47625 

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, 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 (‘‘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 passwordprotected 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-andmortar 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 


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1See 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. 

3The 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. 

4As 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.’’

5Prospective 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. 

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

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

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,’’ § 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

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. 

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 


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6There 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. 

7Many 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. 

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 (‘‘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. 

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. 

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. 


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8NAR did delete from its ILD Policy its rule 

allowing brokers to selectively opt out against 

particular VOW brokers. 

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. 

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 VOWoperating 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 


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9See 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. 

10See 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). 

11See Modified VOW Policy, ¶ I.4. 

12The 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 bricksand-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. 

13See 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. 

14 Id., ¶ III.11. 

15Nothing 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’’). 

16Modified 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. 

competitors’’); see also RE/MAX v. 

Realty One, Inc., 173 F.3d 995, 1014 

(6th Cir. 1999) (upholding Sherman Act 

§ 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

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

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. 

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 


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18Proposed Final Judgment, ¶ VI.A. 

19Under 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. 

20See 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)). 

21See Id., ¶ III.7. 

22See Id., ¶ III.8 & III.9. 

23Proposed Final Judgment, ¶ V.D. 

24 Id., ¶¶ V.E & V.H. 

25 Id., ¶¶ IV.A & IV.B. 

26 Id., ¶ X. 

27 Id., ¶ V.G. 

28 Id., ¶ IX. 29Proposed Final Judgment, ¶ VIII. 

VOW to the brokers and agents with 

whom they partner. 

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

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

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

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

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

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 sixtyday 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 


sroberts on PROD1PC70 with NOTICES
Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Notices 47631 

30The 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). 

31Cf. 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’ ’’). 

32See 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.’’). 

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

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-DanielsMidland 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). 

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


sroberts on PROD1PC70 with NOTICES
47632 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Notices 

1The Board of Directors welcomes public 

comment on Management’s proposal, which will be 

available to for public inspection at http:// 

www.lsc.gov/foia2/foia_eprr.php as of 10 a.m. (EDT) 

on Wednesday, August 13, 2008. 

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 

lllllllllllllllllllll

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, 

jbierig@sidley.com. 

s/David C. Kully 

lllllllllllllllllllll

David C. Kully 

[FR Doc. E8–17800 Filed 8–13–08; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF LABOR 

Office of the Secretary 

Submission for OMB Review: 

Comment Request 

August 11, 2008. 

The Department of Labor (DOL) 

hereby announces the submission of the 

following public information collection 

request (ICR) to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(Pub. L. 104–13, 44 U.S.C. chapter 35). 

A copy of this ICR, with applicable 

supporting documentation; including 

among other things a description of the 

likely respondents, proposed frequency 

of response, and estimated total burden 

may be obtained from the RegInfo.gov 

Web site at http://www.reginfo.gov/ 

public/do/PRAMain or by contacting 

Darrin King on 202–693–4129 (this is 

not a toll-free number)/e-mail: 

king.darrin@dol.gov. 

Interested parties are encouraged to 

send comments to the Office of 

Information and Regulatory Affairs, 

Attn: OMB Desk Officer for the 

Employee Benefits Security 

Administration (EBSA), Office of 

Management and Budget, Room 10235, 

Washington, DC 20503, Telephone: 

202–395–7316/Fax: 202–395–6974 

(these are not toll-free numbers), E-mail: 

OIRA_submission@omb.eop.gov within 

30 days from the date of this publication 

in the Federal Register. In order to 

ensure the appropriate consideration, 

comments should reference the OMB 

Control Number (see below). 

The OMB is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: Employee Benefits Security 

Administration. 

Type of Review: Extension without 

change of currently approved collection. 

Title of Collection: Prohibited 

Transaction Exemption 86–128. 

OMB Control Number: 1210–0059. 

Affected Public: Private Sector—

Business or other for-profits and not-forprofit institutions. 

Total Estimated Number of 

Respondents: 23,673. 

Total Estimated Annual Burden 

Hours: 59,072. 

Total Estimated Annual Costs Burden: 

$711,630. 

Description: Prohibited Transaction 

Class Exemption 86–128 permits 

persons who serve as fiduciaries for 

employee benefit plans to effect or 

execute securities transactions on behalf 

of employee benefit plans. The 

exemption also allows sponsors of 

pooled separate accounts and other 

pooled investment funds to use their 

affiliates to effect or execute securities 

transactions for such accounts in order 

to recapture brokerage commissions for 

benefit of employee benefit plans whose 

assets are maintained in pooled separate 

accounts managed by the insurance 

companies. For additional information, 

see related notice published at 73 FRN 

21987 on April 23, 2008. 

Darrin A. King, 

Departmental Clearance Officer. 

[FR Doc. E8–18842 Filed 8–13–08; 8:45 am] 

BILLING CODE 4510–29–P 

LEGAL SERVICES CORPORATION 

Sunshine Act Meeting of the Board of 

Directors 

TIME AND DATE: The Legal Services 

Corporation Board of Directors will 

meet on August 18, 2008 via conference 

call. The meeting will begin at 3:30 p.m. 

EDT and continue until conclusion of 

the Board’s agenda. 

LOCATION: 3333 K Street, NW., 

Washington, DC 20007, 3rd Floor 

Conference Center. 

STATUS OF MEETING: Open. Directors 

will participate by telephone conference 

in such a manner as to enable interested 

members of the public to hear and 

identify all persons participating in the 

meeting. Members of the public wishing 

to observe the meeting may do so by 

joining participating staff at the location 

indicated above. Members of the public 

wishing to listen to the meeting by 

telephone should call 1–888–390–3110 

and enter 10850 on the key pad when 

prompted. To enhance the quality of 

your listening experience, as well as 

that of others, and to eliminate 

background noises that interfere with 

the audio recording of the proceeding, 

please mute your telephone during the 

meeting. 

MATTERS TO BE CONSIDERED: 

1. Consider and act on adoption of 

agenda 

2. Consider and act on whether to 

authorize the transfer or 

reprogramming of LSC’s FY 2008 

Loan Repayment Assistance 

Program (LRAP) funds to LSC’s FY 

2009 Management and 

Administration budget 1

a. Staff Report 

b. Public Comment 

3. Consider and act on other business 

4. Consider and act on motion to 

adjourn the meeting 

CONTACT PERSON FOR INFORMATION: 

Patricia Batie, Manager of Board 

Operations, at (202) 295–1500. 

SPECIAL NEEDS: Upon request, meeting 

notices will be made available in 

alternate formats to accommodate visual 


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