Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22965 

Technology Corp. based on a consent 

order. 

On March 12, 2009, Isola filed a 

motion pursuant to 19 CFR 210.21(a)(1) 

to terminate the investigation as to 

Shengyi on the basis of withdrawal of 

the complaint. On March 16, 2009, 

Shengyi filed objections to Isola’s 

motion to withdraw. On March 18, 

2009, Isola filed an opposition to the 

objections. On March 19, 2009, Shengyi 

filed a reply. Also on March 19, 2009, 

the Commission investigative attorney 

filed a response in support of Isola’s 

motion to withdraw the complaint. On 

April 16, 2009, the ALJ issued the 

subject ID, granting Isola’s motion to 

withdraw the complaint. 

The Commission has determined not 

to review the subject ID. 

This action is taken under the 

authority of section 337 of the Tariff Act 

of 1930, as amended (19 U.S.C. 1337), 

and of section 210.42(h) of the 

Commission’s Rules of Practice and 

Procedure (19 CFR 210.42(h)). 

Issued: May 11, 2009. 

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E9–11367 Filed 5–14–09; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Consolidated Multiple 

Listing Service, Inc.; Proposed Final 

Judgment and Competitive Impact 

Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of South 

Carolina in United States of America v. 

Consolidated Multiple Listing Service, 

Inc., No. 3:08–CV–1786–SB. On May 2, 

2008, the United States filed a 

Complaint alleging that Consolidated 

Multiple Listing Service, Inc. (‘‘CMLS’’) 

violated Section 1 of the Sherman Act, 

15 U.S.C. 1, by denying consumers 

choice of innovative fee-for-service 

business models available to consumers 

in other parts of South Carolina and by 

adopting burdensome prerequisites to 

membership that prevented some real 

estate brokers, who would likely 

compete aggressively on price, from 

becoming members of CMLS. The 

proposed Final Judgment, filed on May 

4, 2009, requires CMLS to repeal its 

offending rules and prohibits CMLS 

from adopting any new rules that 

exclude or otherwise disadvantage 

brokers who compete in innovative 

ways. 

Copies of the 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 District of South Carolina. 

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. 

J. Robert Kramer II, 

Director of Operations, Antitrust Division. 

In the United States District Court for 

the District of South Carolina Columbia 

Division 

United States of America, Plaintiff, v. 

Consolidated Multiple Listing Service, 

Inc., Defendant 

Civil Action No. 

Date: May 2, 2008 

Judge: 

Complaint for Equitable Relief for 

Violation of Section 1 of the Sherman 

Act, 15 U.S.C. § 1 

The United States of America, by its 

attorneys acting under the direction of 

the Attorney General, brings this civil 

antitrust action pursuant to Section 4 of 

the Sherman Act, 15 U.S.C. 4, against 

Defendant Consolidated Multiple 

Listing Service, Inc. (‘‘CMLS’’), to obtain 

equitable and other relief to prevent and 

remedy violations of Section 1 of the 

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

The United States complains and 

alleges as follows: 

I. Introduction 

1. The United States brings this action 

to prevent CMLS from enforcing rules, 

regulations, by-laws, policies, and 

procedures (collectively ‘‘Rules’’) that 

unreasonably restrain competition 

among real estate brokers in Columbia, 

South Carolina and the surrounding 

areas (‘‘Columbia Area’’). 

2. CMLS is a joint venture comprised 

of brokers who compete with each other 

to sell brokerage services in the 

Columbia Area. CMLS, like other 

multiple listing services, provides 

services to its members, including an 

electronic database of information 

relating to past and current home 

listings in the Columbia Area. The 

database serves as a clearinghouse for 

the members to communicate 

information among themselves, such as 

descriptions of the listed properties for 

sale and offers to compensate other 

members if they locate buyers. In 

addition, the database allows members 

who represent buyers to search for 

nearly all the listed properties in the 

area that match the buyer’s needs. By 

providing an efficient means of 

exchanging information on home 

listings, multiple listing services benefit 

buyers and sellers of real estate, and in 

turn, buyers of real estate brokerage 

services, in their service areas. 

3. However, that same role makes 

access to CMLS’s database—and 

therefore membership in CMLS— 

critically important for any broker 

seeking to serve clients efficiently in the 

Columbia Area. Access to the services 

provided by CMLS is key to being a 

successful broker, and CMLS is the only 

provider of such services in the 

Columbia Area. Therefore, brokers 

seeking to provide brokerage services in 

the Columbia Area need to be members 

of CMLS. 

4. CMLS, its Board of Trustees 

(‘‘Board’’), and its members have 

adopted Rules that govern the conduct 

and business practices of its 

approximately 370 members and set 

standards for the admission of new 

members. Through these Rules, CMLS’s 

Board and its members have 

unreasonably inhibited competition 

over the method of providing brokerage 

services to consumers in the Columbia 

Area and have stabilized the price those 

consumers pay for brokerage services. 

For example, CMLS’s Rules prevent 

members from providing a set of 

brokerage services that includes less 

than the full array of services that 

brokers traditionally have provided— 

even if a consumer prefers to save 

money by purchasing less than all of 

such services. Additionally, CMLS’s 

Rules require members to use a 

standard, pre-approved contract that, 

among other things, prevents its 

members from offering to a home seller 

the option of avoiding paying the broker 

a commission if the seller finds the 

buyer on her own. 

22966 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

5. CMLS’s Rules also require members 

to conform other aspects of their 

brokerage businesses in the manner that 

the group demands. CMLS Rules impose 

unreasonable objective criteria for 

membership and contain subjective 

standards for admission to membership 

that allow CMLS representatives to deny 

membership to brokers who might be 

expected to compete more aggressively 

or in more innovative ways than 

CMLS’s members would prefer, thereby 

excluding such brokers or deterring 

them from seeking membership. 

6. Taken together, CMLS’s Rules limit 

competition among brokers, artificially 

stabilize the price of brokerage services, 

and deter innovation and the emergence 

of new brokerage business models. By 

adopting and enforcing such Rules, 

CMLS has violated and continues to 

violate Section 1 of the Sherman Act, 15 

U.S.C. 1. 

II. Defendant CMLS, Its Board, and Its 

Members 

7. CMLS is organized as a nonprofit 

corporation under the laws of the State 

of South Carolina. Its principal place of 

business is in Columbia, South Carolina, 

and its service area encompasses the 

counties of Richland, Lexington, Saluda, 

Kershaw, Calhoun, Newberry and 

Fairfield. CMLS is a joint venture 

comprised of over 370 competing 

brokers in the Columbia Area. Affiliated 

with those CMLS members are over 

3,100 other licensed real estate 

professionals doing business in the 

Columbia Area. 

8. Whenever this Complaint refers to 

any act or deed of CMLS, it means 

CMLS engaged in the act or deed by or 

through its members, officers, directors, 

Board, committees, trustees, employees, 

staff, agents, or other representatives 

while they were actively engaged in the 

management, direction, or control of 

CMLS’s business or affairs. 

9. Various persons and entities, not 

named as defendants in this action, 

have participated as conspirators with 

CMLS in the offense alleged in this 

Complaint, and have performed acts and 

made statements to further the 

conspiracy. 

III. Jurisdiction and Venue 

10. This Court has subject matter 

jurisdiction over this action under 

Section 4 of the Sherman Act, 15 U.S.C. 

4, and 28 U.S.C. 1331, 1337(a), and 

1345. 

11. Venue is proper in this District 

and this Division under 15 U.S.C. 22, 28 

U.S.C. 1391(b), and Civil Local Rule 

3.01 because CMLS maintains its 

principal place of business, transacts 

business, and is found within this 

District and this Division. 

IV. Effect on Interstate Commerce 

12. The activities and the violations 

by CMLS alleged in this Complaint 

affect consumers located in South 

Carolina and in other States. CMLS 

members have provided and continue to 

provide residential brokerage services to 

in-state and out-of-State residents 

seeking to buy or sell real estate in the 

Columbia Area. In 2005, CMLS 

members facilitated the sale of real 

property worth more than $2 billion and 

they collected commissions of over $125 

million for their services. Many of the 

real properties sold in transactions 

involving CMLS members are purchased 

with mortgages from out-of-state lenders 

and mortgage payments often are made 

across State lines. CMLS’s activities and 

violations are in the flow of, and have 

a substantial effect on, interstate 

commerce. 

V. Concerted Action 

13. CMLS is a combination or 

conspiracy among its members, who are 

brokers that compete with one another 

in the Columbia Area. The members of 

CMLS, as a group and through the Board 

they elect and the staff they indirectly 

employ, have agreed to, adopted, 

maintained, and enforced Rules 

affecting the method of members’ 

provision of brokerage services, 

participation in CMLS, and access to 

CMLS’s services, including access to the 

electronic listings database. CMLS’s 

Rules are therefore the product of 

agreements and concerted action among 

its members. 

VI. Relevant Markets 

14. The provision of brokerage 

services to sellers of residential real 

property and the provision of brokerage 

services to buyers of residential real 

property are relevant service markets 

within the meaning of the antitrust 

laws. 

15. The brokerage business is local in 

nature. Most sellers prefer to work with 

a broker who is familiar with local 

market conditions. Likewise, most 

buyers seek to purchase real estate 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 

CMLS’s service area establishes the 

outermost boundaries of the relevant 

geographic market, although meaningful 

competition among brokers may occur 

in narrower local areas. 

VII. Background of the Offenses 

Industry and Market Power 

16. The vast majority of prospective 

real estate sellers and buyers engage the 

services of a broker. Brokers in the 

Columbia Area are in direct competition 

with each other to provide brokerage 

services to consumers. 

17. CMLS is the only multiple listing 

service for the Columbia Area. Among 

other services that CMLS provides its 

members is the pooling and 

dissemination of information on the vast 

majority of properties available for sale 

in the Columbia Area. CMLS combines 

its members’ real estate listings 

information into an electronic database 

and makes these data available to all 

brokers who are members of CMLS. By 

listing information about a property for 

sale with CMLS, a broker can market it 

efficiently to a large number of potential 

buyers. A broker representing a buyer 

likewise can search the CMLS database 

to provide the buyer with information 

about the vast majority of the properties 

for sale in the Columbia Area. 

18. CMLS members use the database 

to, among other things: Communicate to 

other members the listings information 

relating to real estate that they have for 

sale; offer to compensate other members 

as cooperating brokers if they locate 

buyers for those listings; and locate real 

estate for prospective buyers. 

19. CMLS also provides records of 

sold real estate, which are used by 

brokers working with sellers to set the 

real property’s listing price and to 

determine what offers to accept. Brokers 

representing a buyer likewise use the 

sold data to help buyers determine what 

price to offer for real estate. 

20. Access to CMLS is critical for 

brokers who wish to serve buyers or 

sellers successfully in the Columbia 

Area, and CMLS members account for 

virtually 100 percent of the real estate 

brokerage services provided to home 

buyers and sellers in the Columbia Area. 

Accordingly, CMLS has market power 

in the market for real estate brokerage 

services in the Columbia Area. 

Alternative Brokerage Models 

21. Brokers who adhere to traditional 

methods of doing business typically 

charge a fee calculated as a percentage 

of the sales price of the real estate. Some 

brokers outside of the Columbia Area 

offer alternatives to the traditional 

methods of providing brokerage 

services. If brokers offering these 

alternatives were not restricted from 

competing in the Columbia Area, they 

would provide consumers of brokerage 

services with competitive options and, 

in the process, would place downward 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22967 

pressure on the prices charged by 

brokers offering traditional methods of 

providing brokerage services. However, 

CMLS’s actions have unreasonably 

restricted such competition in the 

Columbia Area, thereby depriving 

consumers of these options and 

artificially stabilizing prices. 

22. Fee-for-Service Models. Some 

brokers outside of the Columbia Area 

contract with home buyers and sellers to 

provide a subset of brokerage services 

charging only for the services that 

consumers wish to purchase. Many of 

these brokers offer their services for a 

flat fee rather than a percentage of the 

home’s sales price and typically their 

fees are lower than what traditional 

brokers charge. One popular service 

offered by fee-for-service brokers is 

known as an ‘‘MLS listing only,’’ 

whereby a broker, in exchange for a fee, 

lists a property on the multiple listing 

service database, while allowing the 

seller to handle all other aspects of the 

transaction. Another fee-for-service 

package available to consumers outside 

of the Columbia Area involves the 

broker handling all aspects of the 

transaction, except for attending the 

closing. This is attractive to home 

sellers who are capable of performing all 

the necessary closing services 

themselves, or who have separately 

retained assistance with the closing, and 

would prefer not to pay a broker to 

attend. Through such packages, buyers 

and sellers can save money by 

purchasing only the services that they 

want their broker to provide. 

23. Exclusive Agency Listings. Outside 

of the Columbia Area, brokers also are 

able to offer consumers the opportunity 

to save money on commissions and fees 

by offering an ‘‘Exclusive Agency 

Listing,’’ which is an agreement under 

which the seller pays no commission or 

fee to his broker if the seller finds the 

buyer himself. 

24. While these and other 

competitively significant alternatives to 

the traditional method of providing 

brokerage services are available to 

consumers outside of the Columbia 

Area, CMLS’s actions have 

unreasonably restricted such 

competition in the Columbia Area. 

VIII. Restraints on Competition 

25. CMLS has harmed competition 

among brokers in the Columbia Area to 

the detriment of consumers. As a result 

of CMLS’s Rules, consumers of 

brokerage services in the Columbia Area 

pay higher commissions or fees for 

brokerage services and have fewer 

alternatives regarding the method of 

providing those brokerage services. 

26. CMLS achieves these adverse 

effects by adopting and enforcing the 

following Rules, among others: 

a. CMLS’s Rules prohibit its members 

from competing with one another by 

offering consumers the sort of fee-forservice brokerage options described in 

Paragraph 22 above. For example, 

CMLS’s Rules require that its members 

have ‘‘active involvement’’ in all aspects 

of the transaction, including ‘‘in the 

marketing, sale, and closing of the 

property.’’ CMLS By-laws, Art. IV. See 

also CMLS Rules, Rule 1(a) (requiring 

that members only use CMLS’s preapproved contract, which includes 

Article IV’s active involvement 

language). The Rules also require that 

‘‘[o]ffers on properties included in the 

CMLS shall be made in written form to 

the Selling Company and not directly to 

the Owner,’’ thereby precluding brokers 

and home sellers in the Columbia Area 

from entering into contracts whereby 

the brokers would let the sellers handle 

the offers in return for a reduced 

commission. CMLS Rules, Rule 2. These 

Rules prohibit brokers and home sellers 

from negotiating brokerage service terms 

and, consequently, harm consumers in 

the Columbia Area because they have 

fewer brokerage service models from 

which to choose. 

b. CMLS’s Rules prohibit its members 

from competing with one another by 

offering alternative contractual terms to 

consumers, such as the Exclusive 

Agency Listings contract described in 

Paragraph 23 above. CMLS requires that 

‘‘[e]ach listing submitted by a Member 

shall be in writing on the Exclusive 

Right to Sell Form as approved by the 

Board from time to time. No alteration 

of any kind to the provisions of the 

Listing Agreement shall be allowed.’’ 

CMLS Rules, Rule 1(a). That same Rule 

forbids CMLS’s members and 

consumers from ‘‘mak[ing] any 

agreement * * * which varies, in any 

way, the provisions of the Listing 

Agreement.’’ This Rule, for example, 

prevents brokers and home sellers in the 

Columbia Area from agreeing to an 

Exclusive Agency Listing whereby the 

seller would pay no commission or fee 

to her broker if the seller finds the buyer 

herself. Consequently, through CMLS, 

brokers in the Columbia Area have 

stabilized the commissions and fees 

they collect, at the expense of Columbia 

Area consumers. 

c. These examples are not exhaustive. 

Other CMLS Rules have similar 

anticompetitive effects. CMLS’s Rules, 

coupled with the need to be a CMLS 

member in order to compete effectively 

in the Columbia Area, allow brokers 

who are members of CMLS to prevent 

innovative or aggressive brokers from 

competing by denying them 

membership in CMLS, and to restrict 

the ways in which existing Columbia 

Area brokers do business by 

disciplining existing members who 

compete too aggressively or in a manner 

inconsistent with the wishes of other 

CMLS members. For example, CMLS’s 

Rules require that members be 

‘‘primarily in the real estate business 

within primary areas served by the 

CMLS.’’ CMLS By-laws, Art. III, § 1. 

CMLS also refuses to admit brokers who 

do not have commercial offices in the 

Columbia Area. CMLS Rules, Rule 5(b). 

These Rules exclude brokers located 

outside of the Columbia Area or that 

engage primarily in a business other 

than real estate, even if such brokers are 

fully licensed by the State of South 

Carolina to serve as real estate brokers. 

Moreover, CMLS provides its Board and 

officers unfettered discretion to reject 

applicants for membership, CMLS 

Rules, Rule 5(c), while simultaneously 

requiring those potential competitors to 

provide information about their 

proposed brokerage models and 

competitive histories. CMLS By-laws, 

Art. III, §§ 6–7. In addition to 

maintaining unfettered discretion over 

membership decisions, CMLS imposes 

an excessive initial fee on new 

members, well above its costs of adding 

them to the membership. See CMLS 

Rules, Rule 5(b). And, CMLS maintains 

unfettered discretion to expel or 

discipline members. CMLS By-laws, 

Art. III, § 4. Consequently, through 

CMLS, brokers in the Columbia Area 

have precluded the entry of aggressive 

competitors and stifled aggressive 

competition between members. 

27. On April 17, 2008, after the 

United States informed CMLS of its 

intention to bring this action, CMLS’s 

counsel told counsel for the United 

States that it had voted to amend some 

of its Rules. CMLS’s counsel told 

counsel for the United States that the 

amendments affect some of the Rules 

listed in Paragraph 26, but that other of 

the rules about which the United States 

complains have not been changed. 

CMLS has not identified for the United 

States the precise changes that CMLS 

made to its Rules despite requests that 

it do so. Even if CMLS has changed 

some of its rules, those rules may well 

continue to violate the antitrust laws. 

Furthermore, even if CMLS, in the face 

of this lawsuit, has in fact brought some 

of its rules into conformity with the 

antitrust laws, CMLS retains complete 

discretion to make further changes to 

those rules that would unduly restrict 

competition and thus violate the Federal 

antitrust laws. 

22968 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

28. Taken individually or in 

conjunction with each other, the Rules 

restrain trade, and are not reasonably 

necessary to make a multiple listing 

service more efficient or effective nor to 

achieve any other procompetitive 

benefits. Therefore, the Rules are 

anticompetitive and, as a result, 

consumers of brokerage services in the 

Columbia Area pay higher commissions 

or fees for brokerage services and have 

fewer choices among types of brokers 

and the method of providing the 

brokerage services they offer. 

IX. Violation Alleged 

29. CMLS’s adoption and enforcement 

of the Rules described above constitutes 

a contract, combination, or conspiracy 

among CMLS and its members that 

unreasonably restrains competition in 

the Columbia Area brokerage markets in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. 

30. The aforesaid contract, 

combination, or conspiracy has had and 

will continue to have anticompetitive 

effects in the relevant markets 

including: Stabilizing the price of broker 

commissions and fees; reducing 

competition on the method of providing 

brokerage services; raising barriers to 

entry; and suppressing innovation. 

31. This contract, combination, or 

conspiracy is not reasonably necessary 

to accomplish any of CMLS’s legitimate 

goals. 

X. Request for Relief 

Wherefore, the United States prays 

that final judgment be entered against 

CMLS declaring, ordering, and 

adjudging that: 

a. 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. CMLS, its members, officers, 

directors, Board, committees, trustees, 

employees, agents, representatives, 

successors, and assigns and all other 

persons acting or claiming to act on 

their behalf, be permanently enjoined 

from engaging in, carrying out, renewing 

or attempting to engage in, carry out or 

renew the contract, combination, or 

conspiracy alleged herein, or any other 

contract, combination, or conspiracy 

having a similar purpose or effect in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1; 

c. CMLS eliminate and cease 

enforcing any and all Rules that 

unreasonably restrain trade and be 

prohibited from otherwise acting to 

unreasonably restrain trade; and 

d. The United States be awarded its 

costs of this action and such other relief 

as may be appropriate and as the Court 

may deem just and proper. 

Dated: May 2, 2008. 

For Plaintiff The United States of America 

/s/ lllllllllllllllllll

Thomas O. Barnett, 

Assistant Attorney General. 

/s/ lllllllllllllllllll

David L. Meyer, 

Deputy Assistant Attorney General. 

/s/ lllllllllllllllllll

J. Robert Kramer II, 

Director of Operations. 

/s/ lllllllllllllllllll

John Read, 

Chief, Litigation III Section. 

Nina Hale, 

Assistant Chief, Litigation III Section. 

/s/ lllllllllllllllllll

Ethan C. Glass, 

Lisa A. Scanlon, 

Owen M. Kendler, 

Nathan Sutton, 

Christopher M. Ries, 

Attorneys for the United States of America, 

U.S. Department of Justice, Antitrust 

Division, Litigation III Section, 325 7th Street, 

NW., Suite 300, Washington, DC 20530, 

Telephone: (202) 307–0468. 

/s/ lllllllllllllllllll

Kevin F. Mcdonald, 

Acting United States Attorney, District of 

South Carolina. 

By: 

Jennifer J. Aldrich (#6035), 

Assistant United States Attorney, 1441 Main 

Street, Suite 500, Columbia, SC 29201, 

Telephone: (803) 343–3176. 

United States District Court for the 

District of South Carolina Columbia 

Division 

United States of America, Plaintiff, v. 

Consolidated Multiple Listing Service, 

Inc., Defendant 

Case No. 3:08–CV–01786–SB 

Date: May 8, 2009 

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 

The United States brought this 

lawsuit against Defendant Consolidated 

Multiple Listing Service, Inc. (‘‘CMLS’’) 

on May 2, 2008, to stop CMLS from 

violating Section 1 of the Sherman Act, 

15 U.S.C. 1, by excluding and restricting 

new forms of competition and harming 

consumers of real estate brokerage 

services throughout the Columbia, 

South Carolina area. CMLS is a joint 

venture of nearly all active residential 

real estate brokers in the Columbia area. 

It controls access to the Columbia real 

estate brokerage market because it 

operates the area’s only multiple listing 

service (‘‘MLS’’), a database of nearly all 

homes for sale through a broker. 

Because local brokers effectively need to 

be members of CMLS to be in business, 

CMLS has the power to dictate how 

brokers can compete and to exclude 

brokers who plan to compete in ways 

that traditional brokers do not like. 

The United States’ complaint alleged 

that CMLS used this power to adopt 

rules that disrupted the competitive 

process by impeding the ability of 

innovative brokers to enter the 

Columbia market and challenge the 

competitive methods of CMLS’s existing 

members. CMLS required brokers to be 

actively involved in all aspects of each 

real estate transaction, even if their 

clients desired fewer services at a lower 

cost. It prohibited brokers from entering 

‘‘exclusive agency’’ agreements with 

sellers under which the seller would 

owe no commission if he or she, rather 

than the broker, found a buyer. Brokers 

who hoped to lower their overhead by 

working from home offices or who were 

located in other areas but wanted to 

offer their services to home buyers and 

sellers in Columbia were denied 

membership in CMLS. CMLS charged 

applicants for membership a 

nonrefundable $5,000 initiation fee and 

demanded that they appear before a 

membership committee composed of the 

applicant’s prospective competitors to 

discuss ‘‘the nature of [their] 

business[es].’’ If CMLS’s board members 

did not like applicants or wanted to 

avoid competing with them, they could 

vote to reject the application. 

As a result of these policies, 

consumers in Columbia were denied the 

benefits that innovative brokers have 

brought to real estate markets in other 

parts of South Carolina and around the 

country. Not only were Columbia-area 

home sellers unable to hire brokers with 

innovative business models—such as 

‘‘fee-for-service’’ brokers who would 

provide only the services the sellers 

desired at a lower cost than full service 

brokers typically charged—consumers 

in Columbia paid more for brokerage 

services than consumers in other 

markets. 

On May 4, 2009, the United States 

filed a Stipulation and proposed Final 

Judgment. The proposed Final 

Judgment, which is described more fully 

below, is designed to eliminate the harm 

to competition caused by CMLS’s 

policies and restore competition to the 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22969 

1CMLS’s rules harmed competition in the 

provision of real estate brokerage services to buyers 

and sellers. The relevant geographic market in 

which these brokers compete is the greater 

Columbia area served by CMLS. As discussed 

above, CMLS possesses substantial market power in 

this market because virtually all Columbia-area 

brokers regard membership in CMLS and access to 

its MLS to be essential to their ability to compete 

effectively to serve Columbia-area buyers and 

sellers. 

real estate brokerage market in 

Columbia. It requires CMLS to repeal its 

offending rules and prohibits CMLS 

from adopting any rules or practices that 

exclude or otherwise disadvantage 

brokers who compete in innovative 

ways. 

The United States and CMLS 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 the Defendant and Its 

Activities 

CMLS is owned by, and its 

membership consists of, real estate 

brokers who compete with each other to 

represent buyers and sellers of homes in 

the Columbia area. It operates the 

Columbia area’s only MLS, a listing 

service that maintains a database of 

nearly all homes for sale through a 

broker. Brokers in Columbia regard 

membership in CMLS to be critical to 

their ability to compete effectively for 

buyers and sellers. By joining CMLS, 

brokers in Columbia can promise their 

seller clients that information about the 

seller’s property will immediately be 

shared with 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. 

CMLS is controlled by its Board of 

Trustees, which has been dominated by 

traditional brokerage firms. For 

example, of the nine CMLS Board 

members in 2008, eight represented 

traditional, high-end brokerage firms 

that do not employ discount or 

alternative business models. The CMLS 

Board possessed the power to approve 

or deny membership applications, 

propose by-laws (subject to membership 

approval), and make rules for members. 

All CMLS member brokers must agree, 

in writing, to follow the CMLS rules as 

a condition of membership. 

Like MLSs in other areas, CMLS 

possesses substantial market power. To 

compete successfully in Columbia, a 

broker must be a member of CMLS; to 

be a member, a broker must adhere to 

any restrictions that CMLS’s Board 

imposes. Unlike most other MLSs, 

however, CMLS exercised this market 

power to regulate how brokers in 

Columbia were allowed to compete and 

to enact burdensome prerequisites to 

membership that prevented some real 

estate brokers, such as those who would 

likely compete aggressively on price, 

from becoming members of CMLS, 

ensuring that those brokers could not 

compete in the Columbia area. 

B. Industry Background 

The prices that Columbia-area 

consumers paid for brokerage services 

increased substantially from 2001 to 

2007. Brokers who adhere to traditional 

methods of doing business typically 

charge a commission calculated as a 

percentage of the sales price of the 

home. As housing prices in Columbia 

(as in many other parts of the country) 

increased during that time period, 

commission fees that consumers paid 

traditional, full-service brokers also 

increased. 

Outside Columbia, brokers responded 

to the higher home prices and 

increasing fees by competing in new 

ways. Many brokers outside Columbia 

have adopted fee-for-service business 

models under which home sellers pay a 

flat fee for specific services they want 

their broker to perform. Home sellers 

who choose fee-for-service brokers and 

who, for instance, take responsibility for 

marketing their own homes, negotiating 

their own contracts, or attending closing 

without broker assistance can 

substantially reduce the fees they pay 

their brokers. Many home sellers in 

markets outside of Columbia have opted 

to purchase only a single brokerage 

service: Having the broker submit 

information about the seller’s property 

to the MLS. Some brokers offer an MLSentry-only service for only a few 

hundred dollars (with an additional fee 

to be paid to any MLS member who 

finds a buyer for the property). Home 

sellers who elect to work with these 

brokers forego important services 

provided by full-service brokers, but can 

save thousands of dollars. 

Other brokers outside Columbia 

deliver some brokerage services over the 

Internet, reducing their costs by 

automating some time-intensive tasks 

and passing cost savings onto 

consumers in the form of lower 

commissions. The ease of sharing 

information over the Internet has also 

allowed some brokers to serve a larger 

geographic area than they were able to 

when face-to-face communication was 

expected. Some brokers from other parts 

of South Carolina and neighboring states 

have expressed interest in competing 

with existing Columbia-area brokers and 

offering brokerage services to buyers 

and sellers in Columbia. 

C. Description of the Alleged Violation 

CMLS unreasonably restrained 

competition by impeding the 

competitive process through its 

adoption and enforcement of rules that 

banned innovative forms of competition 

and raised barriers to entry for new 

competitors. These rules, which were 

agreed to by CMLS’s member brokers, 

injured consumers by limiting the 

variety of services available from 

Columbia-area brokers and raising the 

commissions that consumers must pay 

them. As none of these rules enhanced 

the efficiency or effectiveness of its 

MLS, CLMS’s rules violate Section 1 of 

the Sherman Act, 15 U.S.C. 1.1

As alleged in the complaint, CMLS 

harmed competition through the 

following rules. 

1. Freedom-of-Contract Restriction 

CMLS prohibited brokers and their 

clients from entering into any agreement 

other than the single form contract 

dictated by CMLS. The single contract 

allowed by CMLS—an ‘‘exclusive right 

to sell’’ agreement—required the seller 

to pay a commission to the broker even 

if the seller, and not the broker, was 

responsible for finding a buyer for the 

home. In other markets, clients can 

negotiate an ‘‘exclusive agency’’ 

agreement under which the seller owes 

no commission to the broker if the seller 

finds a buyer. Exclusive agency 

agreements are favored by sellers who 

want to market their own properties, 

even after hiring a broker, and 

preserving the option of paying no 

commission. CMLS outlawed these 

agreements and any other deviations 

from its mandatory form contract. 

2. ‘‘Active Involvement’’ Requirement 

CMLS required brokers to be 

‘‘active[ly] involve[d]’’ in the marketing, 

sale, and closing of each property. This 

prevented Columbia-area consumers 

from saving money by working with feefor-service brokers who charged only for 

the specific services the consumers 

desired. This rule caused one Columbiaarea broker who also operates in other 

parts of South Carolina to charge 

Columbia-area consumers $500 more 

than he charges consumers in other 

markets, where he is not obligated to 

22970 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

2See proposed Final Judgment, ¶ V.B.7. Sellers 

who enter exclusive agency agreements with their 

brokers, under which they owe no commission if 

they find buyers for their properties, may seek to 

market their homes themselves and not rely on their 

brokers for marketing services. The proposed Final 

Judgment also prohibits CMLS from interfering in 

the marketing efforts of home sellers who enter 

these exclusive agency agreements. See id. at ¶¶ 

IV.A.4, V.B. 11, V.B.12 & V.B.16. 

3See id., ¶ V.B.3. The proposed Final Judgment 

also requires CMLS to eliminate a related rule that 

required that offers to purchase a property be 

submitted only to the seller’s broker, and not 

directly to the seller, regardless of the seller’s 

wishes. See id., ¶ V.B.10. 

4See id., ¶ V.B.13. CMLS also unnecessarily 

burdened brokers from other markets who sought to 

compete in Columbia by requiring that its members 

use CMLS-supplied keyboxes (devices installed on 

homes for sale that store a key that CMLS members 

can use to access the home to show to potential 

buyers). This requirement necessitated two trips to 

Columbia: One to pick up the keybox from CMLS 

and install it on the seller’s home and another to 

remove and return the keybox to CMLS. The 

proposed Final Judgment alleviates this burden by 

allowing home sellers to pick up a keybox from 

CMLS and by requiring CMLS to maintain a list of 

local brokers available to remove and return 

keyboxes. See id., ¶ V.B.18. 5See id., ¶¶ IV.A.1 & IV.A.2. 6See id. ¶ V.B.14. Applicants will be required to 

complete an introductory class in the use of CMLS’s 

system (unless they are already familiar with the 

system) and an orientation with a CMLS staff 

member. CMLS will provide the introductory 

training class and orientation no less frequently 

than once every two weeks. See id ¶¶ V.B.17 & V.E. 7See id., ¶ V.B.14. CMLS collects copies of some 

agreements between brokers and their seller clients 

to ensure that a home seller has actually selected 

the broker to provide brokerage services in the sale 

of the seller’s property or that the broker has 

complied with CMLS’s reasonable requirement that 

brokers promptly submit information about the 

property to CMLS. These agreements, however, also 

identify the commission fee the seller agrees to pay 

his or her broker. To ensure that no CMLS member 

broker is able to learn about competitors’ pricing 

practices from these agreements, the proposed Final 

Judgment requires CMLS to prevent any CMLS 

member from seeing the agreements it collects and 

permits brokers who are selected for CLMS’s audit 

of their agreements to substantially redact the 

agreement to remove any competitively sensitive 

information. See id., ¶¶ V.B.9 & V.F. 8See id., ¶ IV.A.1. 9 Id., ¶ IV.B. CMLS had also raised entry costs by 

requiring that applicants obtain at least $500,000 in 

errors and omissions insurance coverage. This 

requirement forced a number of CMLS members 

who were unable to obtain insurance coverage to 

terminate their memberships in CMLS. The 

proposed Final Judgment requires CMLS to repeal 

its insurance requirement, but allows CMLS to 

insist that uninsured brokers disclose their lack of 

insurance coverage to clients and other brokers. Id., 

¶ V.B.20. This disclosure requirement will ensure 

that sellers and other brokers are fully informed 

about a broker’s insurance coverage and will allow 

the marketplace to dictate the need for such 

coverage. 

provide services consumers may not 

want. 

3. Home Office Prohibition 

CMLS required all new members to 

maintain commercial offices and 

prohibited them from operating out of 

their homes. This prevented entry into 

the Columbia market by many brokers 

who hoped to reduce their overhead by 

using home offices and passing on their 

cost savings to their clients in the form 

of lower fees. 

4. Out-of-Area Broker Prohibition 

CMLS insulated itself from 

competition from brokers outside of the 

Columbia area by requiring that all 

brokers maintain an office in the 

Columbia area. Discount brokers 

operating outside Columbia found they 

could not offer their services to 

Columbia-area consumers because their 

low-margin business models did not 

support opening offices within the 

CMLS territory. 

5. Restrictive Membership Requirements 

CMLS charged applicants a 

nonrefundable initiation fee of $5,000, 

greater than its costs in adding new 

members and substantially higher than 

similar entry fees charged by any other 

MLSs in South Carolina. CMLS, which 

maintains a million-dollar-surplus 

annually—in part based on these higherthan-necessary initiation fees— 

distributes a portion of its surplus each 

year to existing members, effectively 

taxing new competition to enrich 

incumbents. CMLS also required 

applicants for membership to appear for 

an interview with a membership 

committee consisting of the traditional, 

full-service brokers that dominated 

CMLS’s Board, at which applicants were 

expected to discuss the nature of their 

businesses. This interview requirement 

deterred applications from several 

nontraditional, low-priced brokers who 

were fearful of losing their 

nonrefundable initiation fee if the 

interview committee opposed their 

business model and declined to approve 

their application. These brokers’ fears 

were well founded, as CMLS’s Board 

also possessed the power to deny 

membership to brokers who they feared 

would compete too aggressively. 

D. Harm From the Alleged Violation 

Taken together, CMLS’s rules— 

established through the exercise of 

market power by CMLS’s broker 

members—impeded competition among 

brokers in Columbia, denying Columbiaarea consumers choices that are 

available outside of Columbia and 

increasing the fees they paid for 

brokerage services. The prevalence of 

nontraditional service offerings in 

markets outside Columbia makes it clear 

that consumers demand these offerings. 

The CMLS rules prohibited Columbiaarea brokers from competing to satisfy 

that demand. One study conducted in 

connection with this case estimated, 

based on experiences in other markets, 

that approximately 1,500 Columbia-area 

home sellers were denied their preferred 

option—an exclusive agency listing— 

between 2005 and 2008. 

Not surprisingly, data collected and 

analyzed in connection with this case 

also revealed that Columbia-area 

consumers paid more, on average, for 

brokerage services than consumers in 

other markets. Data supplied by four 

Columbia-area brokers that also do 

business elsewhere in South Carolina 

revealed that each broker collected more 

in commission fees from Columbia-area 

consumers than it did for the same 

service provided to consumers in other 

areas. On average, Columbia-area home 

sellers paid these brokers approximately 

$1,000 more per transaction than home 

sellers outside Columbia. 

In sum, by disrupting the competitive 

process, CMLS’s rules forced Columbiaarea consumers to pay for less preferred 

and often more expensive brokerage 

services. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment will 

restore competition to the Columbiaarea brokerage market by eliminating 

the anticompetitive CMLS rules and 

imposing additional restrictions to 

ensure that CMLS does not adopt new 

methods to continue to impede 

competition. It requires CMLS to repeal 

its freedom-of-contract restriction,2 its 

‘‘active involvement’’ requirement,3 and 

its requirement that brokers maintain an 

office in the Columbia area.4 CMLS 

repealed its home-office prohibition 

during the course of the litigation. The 

proposed Final Judgment prohibits it 

from reinstating the rule.5

CMLS will also no longer be able to 

prevent the entry of innovative brokers. 

Under the proposed Final Judgment, 

applicants for membership will no 

longer be forced to submit to a 

potentially intimidating interview with 

existing CMLS members,6 and CMLS’s 

Board will no longer possess the 

discretion to deny applications for 

admission.7 In fact, under the proposed 

Final Judgment, CMLS must admit any 

broker who is duly licensed in South 

Carolina.8 The proposed Final Judgment 

also prohibits CMLS from charging 

application or initiation fees that exceed 

its ‘‘reasonably estimated cost’’ in 

adding new members.9 This will ensure 

that applicants will not face an 

unnecessarily high entry fee and will 

end the practice of incumbent members 

enriching themselves at the expense of 

potential entrants. 

The proposed Final Judgment also 

broadly prohibits CMLS from excluding 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22971 

10 See id., ¶¶ VI.A. 

11 Id., ¶¶ IV.A.1 & IV.A.2. 

12 Id., ¶ X. 

13 Id., ¶ V.G. 

14 Id., ¶ V.H. 

15 Id., ¶ IX. 16 Id., ¶ VIII. 

17 The 2004 amendments substituted ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for a court to 

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); 

see also SBC Commc’ns, 489 F. Supp. 2d at 11 

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

any licensed broker (who does not 

possess a criminal record10) from 

membership and from discriminating 

against or disadvantaging any broker 

based on the services the broker 

provides his or her clients, the 

contractual forms the broker uses, the 

broker’s pricing or commission rates, or 

the broker’s office location.11

Finally, the proposed Final Judgment, 

applicable for ten years after its entry by 

this Court,12 establishes an antitrust 

compliance program under which 

CMLS must furnish to the United States 

minutes of each meeting of CMLS’s 

Board or its committees and copies of its 

rules following any rule changes.13 After 

entry of the proposed Final Judgment, 

CMLS is also required to provide copies 

of the Final Judgment and of its rules, 

modified to conform to the Final 

Judgment, to each of its members and to 

each person CMLS knows to have 

inquired about membership in the past 

five years.14 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 

CMLS.15

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 

CMLS. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and CMLS 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 be 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.16

VI. Alternatives to the Proposed 

Amended Final Judgment 

At several points during the litigation, 

the United States received from 

defendant CMLS proposals or 

suggestions that would have provided 

less relief than is contained in the 

proposed Final Judgment. These 

proposals and suggestions were rejected. 

The United States considered, as an 

alternative to the proposed Final 

Judgment, proceeding with a full trial 

on the merits against CMLS. The United 

States is satisfied that the relief 

contained in the proposed Final 

Judgment will quickly establish, 

preserve, and ensure that Columbia-area 

consumers can benefit from unfettered 

competition in the Columbia market. 

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)(1). In 

making that determination, the court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

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

considering these statutory factors, the 

court’s inquiry is necessarily a limited 

one as the 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 1 (D.D.C. 2007) (assessing 

public interest standard under the 

Tunney Act).17

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: 

22972 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

18 Cf. BNS, 858 F.2d at 464 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’). See generally 

Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

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

19 See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of 

corrupt failure of the government to discharge its 

duty, the Court, in making its public interest 

finding, should * * * carefully consider the 

explanations of the government in the competitive 

impact statement and its responses to comments in 

order to determine whether those explanations are 

reasonable under the circumstances.’’); S. Rep. No. 

93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where 

the public interest can be meaningfully evaluated 

simply on the basis of briefs and oral arguments, 

that is the approach that should be utilized.’’). 

[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).18 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 court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. 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 11.19

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that the United States considered 

in formulating the proposed Final 

Judgment. 

Respectfully submitted, 

For Plaintiff The United States of America 

s/ Jennifer J. Aldrich 

William Walter Wilkins, III, 

United States Attorney, District of South 

Carolina. 

By: 

Jennifer J. Aldrich (#6035), 

Assistant United States Attorney, 1441 Main 

Street, Suite 500, Columbia, SC 29201, 

Telephone: (803) 343–3176. 

David C. Kully, 

Timothy T. Finley, 

Ethan C. Glass, 

Lisa Scanlon, 

Nathan Sutton, 

Owen M. Kendler, 

United States Department of Justice, 

Antitrust Division, Litigation III Section, 450 

5th Street, NW., Suite 400, Washington, DC 

20530, Telephone: (202) 305–9969. 

Dated: May 8, 2009 

Certificate of Service 

I, Jennifer J. Aldrich, certify that on 

this 8th day of May, 2009, I caused a 

copy of the Competitive Impact 

Statement to be served on the person 

listed below by ECF. 

Edward M. Woodward, Jr. 

Woodward, Cothran & Herndon 

P.O. Box 12399 

Columbia, SC 29211 

e-mail: emwoodward@wchlaw.com 

Counsel for Defendant Consolidated 

Multiple Listing Service, Inc. 

s Jennifer J. Aldrich 

Jennifer J. Aldrich 

United States District Court for the 

District of South Carolina Columbia 

Division 

United States of America, Plaintiff, v. 

Consolidated Multiple Listing Service, 

Inc., Defendant 

Case No. 3:08–CV–01786–SB 

Filed: 05/04/2009 

[Proposed] Final Judgment 

Whereas, Plaintiff, United States of 

America, filed its Complaint on May 2, 

2008, alleging that Defendant 

Consolidated Multiple Listing Service, 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22973 

Inc. (‘‘CMLS’’) adopted rules and 

practices that exclude competitors from 

and restrain competition in the 

Columbia, South Carolina, real estate 

brokerage market 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 

or law, and without this Final Judgment 

constituting any evidence against, or 

any admission by, any party regarding 

any issue of fact or law; 

Whereas, the United States requires 

CMLS to agree to certain procedures and 

prohibitions for the purposes of 

preventing and remedying the loss of 

competition alleged in the Complaint; 

Whereas, CMLS agrees to be bound by 

the provisions of this Final Judgment 

pending its approval by the Court; 

Whereas, the purpose of this Final 

Judgment is the prompt and certain 

elimination of barriers to new and 

innovative broker competitors and 

impediments to competition among 

brokers in the Columbia area; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is ordered, 

adjudged, and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against CMLS under Section 1 of the 

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

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Board’’ means CMLS’s Board of 

Directors or Board of Trustees. 

B. ‘‘Broker-in-Charge’’ means a broker-incharge as the term is defined under Title 40, 

Chapter 57 of the Code of Laws of South 

Carolina. 

C. ‘‘CMLS’’ means the Defendant, 

Consolidated Multiple Listing Service, Inc., 

its predecessors, successors, subsidiaries, 

affiliates, partnerships, and joint ventures 

and all directors, trustees, 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 CMLS and any other 

Person. 

D. ‘‘Department of Justice’’ means the 

United States Department of Justice, 

Antitrust Division. 

E. ‘‘Including’’ means including, but not 

limited to. 

F. ‘‘Licensee’’ means a Person licensed as 

a broker or salesman under Title 40, Chapter 

57 of the Code of Laws of South Carolina and 

affiliated with a Member of CMLS. 

G. ‘‘Member’’ means an Owner who is 

entitled to receipt of or access to all products 

and services that CMLS offers to any member 

or participant. 

H. ‘‘Membership’’ means being a Member 

of CMLS. 

I. ‘‘Owner’’ means a person who is or 

employs a Broker-in-Charge. 

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. ‘‘Rule’’ means any CMLS rule, bylaw, 

policy, standard, or guideline. 

L. The terms ‘‘and’’ and ‘‘or’’ have both 

conjunctive and disjunctive meanings. 

III. Applicability 

This Final Judgment applies to CMLS 

and all other persons in active concert 

or participation with it who receive 

actual notice of this Final Judgment by 

personal service or otherwise. 

IV. Prohibited Conduct 

A. Subject to the provisions of Section VI 

of this Final Judgment, CMLS shall not 

adopt, maintain, or enforce any Rule, or enter 

into or enforce any agreement or practice, 

that directly or indirectly 

1. Denies Membership in CMLS to any 

Owner who requests Membership in CMLS; 

2. Discriminates against or disadvantages 

any Member or Licensee based on the 

Member’s or Licensee’s office location, 

pricing or commission rates, business model, 

contractual forms or types used, or services 

or activities the Member or Licensee 

performs or does not perform for any home 

buyer or home seller; 

3. Conditions CMLS’s acceptance of any 

listing or its provision of any other product 

or service to any Member or any Licensee on 

the Member’s or Licensee’s pricing or 

commission rate or performance of or 

agreement to perform any service or activity 

for any home buyer or home seller; or 

4. Prohibits, restricts, or impedes any 

truthful advertising or marketing activities of 

any home seller or discriminates against or 

disadvantages any Member or Licensee for 

any truthful advertising or marketing activity 

in which any home seller is engaged. For 

purposes of this provision, it is not 

untruthful for a home seller who has entered 

an exclusive agency listing agreement with a 

Member or Licensee to advertise his or her 

home in ‘‘For Sale by Owner’’ or ‘‘FSBO’’ 

publications or on ‘‘For Sale by Owner’’ or 

‘‘FSBO’’ Web sites or to otherwise suggest to 

the public that the home seller is selling his 

or her own home. 

B. CMLS shall not require any Owner who 

seeks to become a Member to pay, as a 

condition of becoming a Member, initiation, 

application, or other fees that, individually or 

in the aggregate, exceed the reasonably 

estimated cost incurred by CMLS in adding 

a new Member. 

C. CMLS shall not inquire into or request 

information about the actual or anticipated 

business model, prices or commission rates 

charged or to be charged, or operations of (i) 

any Owner who requests Membership in 

CMLS, (ii) any Member, or (iii) any Licensee, 

except as necessary to ensure that the Owner, 

Member, or Licensee holds (or employs a 

person who holds) the appropriate license 

under Title 40, Chapter 57 of the Code of 

Laws of South Carolina. 

D. CMLS shall not re-adopt or enforce any 

Rules or portions of Rules that it must delete 

under Sections V.A or V.B of this Final 

Judgment or reverse or modify any 

modifications to Rules or portions of Rules 

that it must modify under Section V.B of this 

Final Judgment. 

V. Required Conduct 

A. Subject to the provisions of Section VI 

of this Final Judgment, CMLS shall delete 

and cease to enforce any Rule, and 

discontinue any practice, that CMLS would 

be prohibited from adopting, maintaining, or 

enforcing pursuant to Section IV of this Final 

Judgment. 

B. CMLS shall make the following specific 

changes to its Rules (all references are to the 

December 2008 version of CMLS’s Bylaws 

and to the January 2009 version of CMLS’s 

rules): 

1. CMLS shall modify Article III, 

Section 1 of its Bylaws as follows: 

Current language: 

Those eligible for membership in CMLS 

shall consist of entities and/or individuals 

holding a license to engage in the real estate 

business within the Midlands of South 

Carolina which are primarily in the real 

estate business within primary areas served 

by the CMLS shall qualify for membership. 

The service areas include the counties of 

Richland, Lexington, Saluda, Kershaw, 

Calhoun, Newberry and Fairfield. 

Modified language: 

Those eligible for membership in CMLS 

shall consist of Owners who are or who 

employ Brokers-in-Charge holding licenses 

allowing them to engage in the real estate 

business in South Carolina. 

2. CMLS shall delete and cease to 

enforce the following portion of Article 

III, Section 6 of its Bylaws: 

This application will include a thorough 

resume of the new Member’s Broker-inCharge and owner. The prospective member 

also agrees that a credit check may be 

required. The application must be submitted 

to the CMLS office no later than two weeks 

prior to the scheduled membership meeting. 

3. CMLS shall delete and cease to 

enforce the following portion of Article 

IV of its Bylaws: 

Recognizing That Professional 

Representation Of Both A Buyer And A 

Seller Is Critically Important In Any Real 

Estate Transaction, No Property Shall Be 

Listed With The CMLS Unless The 

Agreement Between The Seller And Listing 

Agent Expressly Requires Active 

Involvement By That Agent In The Sale And 

Closing Of The Property. Failure To Abide By 

This Precept Shall Cause A Property To Be 

22974 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

De-Listed And May Subject The Listing 

Agent To Expulsion From CMLS. 

4. CMLS shall modify Article XI of its 

Bylaws as follows: 

Current language: 

Any dispute between Members relating to 

or arising out of breaches or violations of the 

rules and regulations of the CMLS, or 

between Members and buyers and sellers, 

arising out of the use of the CMLS, shall be 

submitted for mediation as herein provided 

in the Exclusive Right to Sell Contract. 

Modified language: 

Any dispute between Members relating to 

or arising out of breaches or violations of the 

rules and regulations of the CMLS shall be 

submitted for mediation. 

5. CMLS shall modify a portion of 

Definition 8 (‘‘Listing Agreement’’) as 

follows: 

Current language: 

CMLS allows the entry of Exclusive Right 

to Sell and Exclusive Agency into the CMLS 

database, as adopted and approved by the 

Board from time to time. 

Modified language: 

CMLS allows the entry of Exclusive Right 

to Sell and Exclusive Agency listings into the 

CMLS database. 

6. CMLS shall modify Definition 10 

(‘‘FSBO’’) as follows: 

Current language: 

Properties for sale by an Owner with no 

CMLS Exclusive Right to Sell Form executed 

by Owner. 

Modified language: 

Properties for sale by an Owner with no 

Listing Agreement executed by Owner. 

7. CMLS shall modify Rule 1(a) as 

follows: 

Current language: 

Written Agreement. Each listing submitted 

by a Member shall be in writing on the 

Exclusive Right to Sell (ERTS) Form or 

Exclusive Agency (EA) Form as approved by 

the Board from time to time. No alteration of 

any kind to the provisions of the Listing 

Agreement shall be allowed. No material 

shall be included in the ‘Special Stipulations’ 

section of the Listing Agreements which is 

inconsistent with or which modifies the 

printed portion of the Listing Agreements or 

which is inconsistent with the By-Laws or 

Rules or Regulations of CMLS. No Member or 

representative thereof shall make any 

agreement with an Owner, whether verbally 

or in writing, which varies, in any way, the 

provisions of the Listing Agreements 

provided herein. CMLS allows only a single 

list price for a property. 

Modified language: 

Written Agreement. For each listing 

submitted to CMLS by a Member, the 

Member shall have a written Listing 

Agreement with the property owner. 

8. CMLS shall modify Rule 1(b)(1) as 

follows: 

Current language: 

All listings shall be prepared on such 

forms as the Board shall approve from time 

to time* * * 

Modified language: 

Members shall collect information about 

listings submitted to CMLS on Listing Input 

Sheets as the Board shall approve from time 

to time * * * 

9 . CMLS shall modify Rule 1(b)(2) as 

follows: 

Current language: 

All listings must be entered into the 

computer within 2 business days upon 

acceptance of the listing by the Member. If 

not entered by the Member, the listing shall 

be delivered to CMLS within 2 business days 

by hand delivery or facsimile transfer and a 

fee of $15.00 will be required for entry by 

CMLS. Completed Listing Forms (to include 

Listing Input Sheets and Exclusive Right to 

Sell or Exclusive Agency Contracts) are not 

required to be submitted to CMLS, but will 

be retained by member companies in 

accordance with current State Law. Copies of 

these documents shall be submitted to CMLS 

upon request. Additionally, ten (10) percent 

of new listings entered into the CMLS 

database will be automatically selected for 

audit. The Listing Company will be notified 

at the time the listing is entered into the 

system and an MLS number assigned. A 

follow-up e-mail will be transmitted to the 

Listing Agent, the person entering the listing 

and the BIC. 

Modified language: 

All listings must be entered into the 

computer within two (2) business days upon 

acceptance of the listing by the Member. If 

not entered by the Member, the Listing Input 

Sheet shall be delivered to CMLS within two 

(2) business days by hand delivery or 

facsimile transfer and a fee of $15 will be 

required for entry by CMLS. Completed 

Listing Agreements should be retained by 

member companies in accordance with 

current State Law. Copies of Listing Input 

Sheets (but not Listing Agreements) shall be 

submitted to CMLS upon request. However, 

no more than ten (10) percent of new listings 

entered into the CMLS database will be 

randomly selected for audit. The Listing 

Company will be notified at the time the 

listing is entered into the system and an MLS 

number assigned. A follow-up e-mail will be 

transmitted to the Listing Agent, the person 

entering the listing and the BIC. If selected 

for audit, the Listing Company shall submit 

copies of Listing Input Sheets and Listing 

Agreements to CMLS within two business 

days. Before submitting any Listing 

Agreement, the Listing Company may white 

out, black out, or otherwise conceal all 

information in the Listing Agreement except 

the Member’s or Listing Agent’s and owner’s 

signatures, the co-broke fee to be paid to any 

Selling Company, the date of execution of the 

Listing Agreement, the term (length) of the 

Listing Agreement, and the address of the 

listed property. Listings submitted for audit 

may be reviewed by any CMLS employee 

other than those employees who are also 

CMLS Members. CMLS will destroy any 

audited Listing Input Sheets and Listing 

Agreements within five business days of 

receiving them or following the resolution of 

any issues. 

10. CMLS shall modify a portion of 

Rule 2 as follows: 

Current language: 

Offers on properties included in the CMLS 

shall be made in written form to the Selling 

Company and not directly to the Owner. 

Modified language: 

Offers on properties included in the CMLS 

shall be made in written form to the Listing 

Company and not directly to the Owner, 

unless the Listing Company communicates 

otherwise in the broker or agent remarks field 

in the listing. The Listing Company shall, 

upon request, furnish an executed copy of a 

form dated and signed by the Owner stating 

as follows: ‘I have entered a listing agreement 

with [broker] for the sale of my property. I 

have agreed with my broker that offers from 

potential buyers (or their brokers or agents) 

will be submitted to me and not to my 

broker’ 

11. CMLS shall modify a portion of 

Rule 3 as follows: 

Current language: 

There will be no owner’s names or phone 

numbers on any signage. 

Modified language: 

There will be no owner’s names or phone 

numbers on any signage, unless the Listing 

Company and Owner have entered an 

Exclusive Agency Listing as opposed to an 

Exclusive Right to Sell Listing. 

12. CMLS shall modify a portion of 

Rule 3 as follows: 

Current language: 

No ‘For Sale By Owner’ (FSBO) sign may 

be placed on the property nor may the 

property be advertised in print media as a 

FSBO or electronically on FSBO sites. 

Modified language: 

No ‘For Sale By Owner’ (FSBO) sign may 

be placed on the property nor may the 

property be advertised in print media as a 

FSBO or electronically on FSBO sites, unless 

the Listing Company and Owner have 

entered an Exclusive Agency Listing as 

opposed to an Exclusive Right to Sell Listing. 

13. CMLS shall modify a portion of 

Rule 5(b) as follows:: 

Current language: 

In order to maintain the highest 

professional standards and meet the 

requirements of Article II Item 3, all Members 

must maintain an office in accordance with 

State Law. The office shall be maintained 

within primary areas served by CMLS, which 

includes the counties of Richland, Lexington, 

Kershaw, Saluda, Newberry, Calhoun and 

Fairfield. 

Modified language: 

In order to maintain the highest 

professional standards and meet the 

requirements of Article II Item 3, all Members 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22975 

must maintain an office in accordance with 

State Law, enforcement of which is the 

responsibility of the appropriate State 

officials. 

14. CMLS shall delete and cease to 

enforce Rule 5(c), which states as 

follows: 

A representative (Owner/Broker-in-Charge) 

of the prospective Member must personally 

appear at the CMLS office for a brief 

orientation meeting with the Membership 

Committee. The CMLS Board will vote on 

acceptance of the prospective new Member at 

the next scheduled board meeting. This 

voting process may also be conducted via email. The prospective Member will be 

notified of the Board’s decision within 2 

business days. 

15. CMLS shall modify a portion of 

Rule 7 as follows: 

Current language: 

* * * no Member may advertise in any 

media that they can list a property in the 

CMLS for a flat fee without disclosing to the 

consumer that the consumer will be required 

to sign an Exclusive Right to Sell contract 

which includes the co-broke fee the 

consumer is willing to pay. 

Modified language: 

* * * no Member may advertise in any 

media that they can list a property in the 

CMLS for a flat fee without disclosing to the 

consumer that the consumer will be required 

to offer a co-broke fee. 

16. CMLS shall modify a portion of 

Rule 7 as follows: 

Current language: 

No property may be advertised in print 

media as a FSBO or electronically on FSBO 

sites nor can a FSBO sign be placed on the 

property. 

Modified language: 

No property may be advertised in print 

media as a FSBO or electronically on FSBO 

sites nor can a FSBO sign be placed on the 

property, unless the Listing Company and 

Owner have entered an Exclusive Agency 

Listing as opposed to an Exclusive Right to 

Sell Listing. 

17. CMLS shall modify Rule 17 as 

follows: 

Current language: 

Prior to being granted access to the CMLS 

system for the purpose of information entry 

an agent/representative or individual 

Member must attend and complete an 

introductory class on the use thereof and 

provide evidence thereof to the CMLS staff. 

Modified language: 

Prior to being granted access to the CMLS 

system for the purpose of information entry, 

an agent/representative or individual 

Members must attend and complete an 

introductory class on the use of the CMLS 

system and an orientation with a CMLS staff 

member (who is not a CMLS Member). New 

Members who previously worked as an 

agent/representative under another CMLS 

Member and had training in and access to the 

CMLS system need not repeat the 

introductory class and orientation. The 

agent/representative or individual Member 

will also be excused from the introductory 

class if he or she demonstrates familiarity 

with the MLS software used by CMLS, 

through membership in another MLS that 

uses the same software. In such case, the 

agent/representative or individual Member 

may receive the orientation by phone. CMLS 

shall provide introductory classes/orientation 

no less frequently than once every two 

weeks, if needed. 

18. CMLS shall modify Rule 20(21) as 

follows: 

Current language: 

All keyboxes must be approved by the 

CMLS. Within the primary service area of 

CMLS, another type of keybox may be placed 

on the listing but must be accompanied by 

a keybox approved by the CMLS (including 

HUD homes, Corporate Owned homes, 

Foreclosures, etc). Subleasing of CMLS 

keyboxes is strictly forbidden and will result 

in a fine of $500 for each offense. Listings in 

violation of this rule will be removed from 

the CMLS system without notice. 

Modified language: 

Listings with keyboxes in the CMLS 

primary service area (Richland, Lexington, 

Kershaw, Saluda, Fairfield, Newberry and 

Calhoun Counties) must have a CMLS 

approved keybox. Another type of keybox 

(non-CMLS approved) may be placed on the 

listing but must be accompanied by a keybox 

approved by CMLS (including HUD homes, 

Corporate Owned homes, Foreclosures, etc.). 

Upon receipt of a signed agreement between 

the Seller and an agent/representative or 

individual Member requesting CMLS to 

supply a keybox directly to the Seller, CMLS 

will furnish the Seller a keybox. The 

agreement shall include a statement that the 

agent/representative or individual Member 

agrees to pay all normal fees associated with 

the issuance of a keybox. CMLS shall 

maintain a list of keyholders available to 

remove keyboxes as a service to listing 

brokers at a fee to be negotiated between the 

keyholder and Member. Subleasing of CMLS 

keyboxes is strictly forbidden and will result 

in a fine of $500 for each offense. Listings in 

violation of this rule will be removed from 

the CMLS system without notice. 

19. CMLS shall modify Rule 20(23) as 

follows: 

Current language: 

Any agreement between a listor client and 

a Member that gives the Member an 

advantage over another Member must be 

disclosed on the CMLS listing input sheet 

and appear on the computer printout sheet, 

i.e., if the listing company or owner sells the 

property the commission will be modified. 

The listing member must disclose the details 

of such agreement when requested by 

another Member. 

Modified language: 

If a Member enters a Listing Agreement 

with an Owner under which the commission 

rate varies for any reason, that fact (but not 

the commission rate) shall be disclosed on 

the CMLS Listing Input Sheet and appear on 

the computer printout sheet. 

20. CMLS shall modify Rule 21 as 

follows: 

Current language: 

Each member shall provide evidence to the 

Board annually that it maintains Errors and 

Omissions insurance in an amount of 

$500,000.00 or greater. Failure to maintain 

such insurance shall result in loss of 

membership if not corrected within 90 days 

after notice. 

Modified language: 

If a Member does not have or maintain at 

least $500,000 in Errors and Omissions 

insurance, it shall disclose that fact on each 

document required to be executed in the 

course of creating a listing. The Member shall 

also disclose that fact on the Listing Input 

Sheet and CMLS will include the following 

statement on any publication of that listing: 

‘The Listing Company for this property does 

not maintain Errors and Omissions 

insurance. 

C. CMLS shall deliver, to any Person 

who requests it and by whatever 

reasonable delivery method such Person 

requests (including e-mail), a complete 

set of materials necessary to apply for 

Membership, including a complete set 

of CMLS’s then-current Rules. 

D. CMLS shall permit any Owner to 

submit an application for Membership 

by whatever reasonable delivery method 

he or she desires. 

E. Within three business days of 

completion of orientation and CMLS 

system training, if needed, CMLS shall 

grant the Owner Membership in CMLS. 

If the applicant (Member, if orientation 

has been completed) has previously 

been trained in the use of CMLS’s 

systems (by CMLS or another MLS), 

CMLS shall immediately provide the 

applicant all passwords and other 

information and materials necessary for 

him or her to submit listings to CMLS, 

to access CMLS’s database of listings 

(including confidential or broker-tobroker information fields), and to use 

any product or service provided by 

CMLS. If the new applicant has not 

previously been trained in the use of 

CMLS’s systems, CMLS shall provide 

such information and materials after the 

new applicant has completed training in 

the use of CMLS’s systems. CMLS shall 

offer training in the use of its systems 

no less frequently than once every two 

weeks, if needed. 

F. CMLS shall prevent any employee, 

officer, director, or trustee of CMLS who 

is himself or herself a Member or 

Licensee from viewing or accessing 

listing or other agreements between a 

Member or Licensee and any home 

buyer or home seller. Membership 

applications shall not request any 

22976 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

information concerning the business 

model or operations of or the 

commissions or other prices to be 

charged by the applicant. 

G. CMLS shall furnish to the 

Department of Justice 

1. A complete set of CMLS’s Rules, 

within five business days of each 

modification to those Rules; and 

2. A complete set of minutes of any 

meeting of CMLS Members or any 

regular or special meeting of CMLS’s 

Board or of any committee comprised of 

members of CMLS’s Board, within five 

business days of the approval of such 

minutes (if such minutes are formally 

approved) or of the finalization of such 

minutes (if such minutes are not 

formally approved). 

H. Within five business days after 

entry of this Final Judgment, CMLS 

shall 

1. Furnish to each Member and 

Licensee a hard or electronic copy of 

this Final Judgment and a hard or 

electronic copy of CMLS’s Rules 

modified to conform to the provisions of 

this Final Judgment; and 

2. Furnish a copy of this Final 

Judgment and a copy of CMLS’s Rules 

modified to conform to the provisions of 

this Final Judgment to each Person who, 

in the five years preceding entry of this 

Final Judgment, CMLS knows to have 

picked up an application for 

Membership or who otherwise inquired 

about becoming a Member. CMLS shall 

also notify each such Person that CMLS 

will allow any Owner, who is not 

prohibited from Membership (under 

Rules permitted under Section VI of this 

Final Judgment), to become a Member. 

VI. Permitted Conduct 

Subject to Section IX of this Final 

Judgment and notwithstanding any of 

the above provisions, nothing in this 

Final Judgment shall prohibit CMLS 

from: 

A. Denying Membership to or 

terminating the Membership of any 

Owner who no longer holds, or no 

longer employs a Broker-in-Charge who 

holds, a broker’s license under Title 40, 

Chapter 57 of the Code of Laws of South 

Carolina or who has been convicted of 

a crime of either a criminal sexual 

nature or relating to the improper 

handling of funds; 

B. Requiring, as a condition of 

obtaining or maintaining Membership, 

that CMLS Members certify that each 

Licensee affiliated with the Member has 

undergone a nationwide background 

check and has no convictions of either 

a criminal sexual nature or relating to 

the improper handling of funds; and 

disciplining, including terminating the 

Membership or access to CMLS of, any 

Member or Licensee who violates CMLS 

Rules or fails to pay CMLS’s fees or 

dues, provided (i) that CMLS not 

discriminate in its investigation or 

discipline of Members or Licensees for 

Rules violations or failure to pay fees or 

dues based on the Members’ or 

Licensees’ office locations, pricing or 

commission rates, business models, 

contractual forms or types used, or the 

services or activities they perform or do 

not perform for any home buyer or 

home seller and (ii) that it maintain 

processes consistent with the 

requirements of § 33–31–621(b)(2) of the 

Code of Laws of South Carolina. 

VII. Compliance and Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

duly authorized representatives of the 

Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon written 

request of a duly authorized 

representative of the Assistant Attorney 

General in charge of the Antitrust 

Division, and on reasonable notice to 

CMLS, be permitted: 

1. Access during CMLS’s office hours 

to inspect and copy, or at the United 

States’s option, to require CMLS to 

provide hard or electronic copies of, all 

books, ledgers, accounts, records, data 

and documents in CMLS’s possession, 

custody, or control, relating to any 

matters contained in this Final 

Judgment; and 

2. To interview, either informally or 

on the record, CMLS’s Members, 

directors, trustees, officers, employees, 

or agents, who may have their 

individual counsel present, regarding 

such matters. The interviews shall be 

subject to the reasonable convenience of 

the interviewee and without restraint or 

interference by CMLS. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, CMLS shall 

submit written reports or interrogatory 

responses, under oath if requested, 

relating to 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 CMLS to 

the United States, CMLS represents and 

identifies in writing the material in any 

such information or documents to 

which a claim of protection may be 

asserted under Rule 26(c)(1)(G) of the 

Federal Rules of Civil Procedure, and 

CMLS marks each pertinent page of 

such material, ‘‘Subject to claim of 

protection under Rule 26(c)(1)(G) of the 

Federal Rules of Civil Procedure,’’ then 

the United States shall give CMLS 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 CMLS. 

X. Expiration of Final Judgment 

Unless this Court grants an extension, 

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’ 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. 

Date: llllllllllllllllll

Court approval subject to procedures set 

forth in the Antitrust Procedures and 

Penalties Act, 15 U.S.C. § 16. 

Sol Blatt, Jr., 

United States District Judge. 

[FR Doc. E9–11392 Filed 5–14–09; 8:45 am] 

BILLING CODE P