United States v. Greater Pittsburgh Board of Realtors; Motion of the United States for Modification of the Final Judgment, 39792-39796 [05-13532]
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Federal Register / Vol. 70, No. 131 / Monday, July 11, 2005 / Notices
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Greater Pittsburgh
Board of Realtors; Motion of the United
States for Modification of the Final
Judgment
Notice is hereby given that a Motion
for Modification of the Final Judgment,
proposed Final Judgment and proposed
Order have been filed with the United
States District Court for the Western
District of Pennsylvania. United States
of America v. Greater Pittsburgh Board
of Realtors, Civil Action No. 72–499.
The Realtors Association of
Metropolitan Pittsburgh (‘‘RAMP’’), the
successor to the Greater Pittsburgh
Broad of Realtors, is bound by a Final
Judgment that settled allegations
defendants published, circulated, and
adhered to agreed-upon uniform rates of
commissions and fees in violation of the
Sherman Act. The Final Judgment was
entered on May 21, 1973 and prohibited
the defendants from agreeing on prices
and from publishing any rate or
commission for the sale of real estate.
RAMP publishes Pittsburgh Homes
Guide by Realtors, a real estate listings
magazine. Member real estate
professionals purchase advertising to
describe the services they offer. At least
one firm offering real estate brokerage
services has attempted to purchase
advertising that would contain
information about discounted fees.
RAMP has informed that firm that it
will not published the advertising
because the Final Judgment prohibits it.
The modified consent decree would
strike that provision and add a
provision making it clear that RAMP
can publish information about real
estate commissions and fees set by an
individual broker. If approved by the
Court, the new decree will allow the
public access to more information about
different kinds of fees charged by real
estate professionals who help sell
homes. The decree will still serve its
original purpose: to enjoin RAMP and
its member brokers from agreeing on
prices. Copies of the Motion, proposed
Final Judgment and Order are available
for inspection at the Department of
Justice in Washington, DC in Room 200,
325 Seventh Street, NW., on the Internet
at https://www.usdoj.gov/atr, and at the
Office of the Clerk of the United States
District Court for the Western District of
Pennsylvania, 829 United States
Courthouse, 7th and Grant Street,
Pittsburgh, PA 15219.
Public comment is invited within 30
days of the date of this notice. Such
comments, and responses thereto, will
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be published in the Federal Register
and filed with the Court. Comments
should be directed to John R. Read,
Chief, Litigation III Section, Antitrust
Division, Department of Justice, 325 7th
ST., NW., Suite 300, Washington, DC
20530, (telephone: (202) 616–5935).
J. Robert Kramer II,
Director of Operations, Antitrust Division.
United States District Court for the
Western District of Pennsylvania
United States of America, Plaintiff, v.
Greater Pittsburgh Board of Realtors,
East Suburban Multilist Real Estate
Brokers, Inc., South Hills Multilist, Inc.,
North Suburban Multilist, and Greater
Pittsburgh Multilist Council,
Defendants.
Civil No. 72–499
Filed:
Entered:
The United States moves this Court to
modify the Final Judgment entered in
this case.
I. Background
The Complaint, filed on June 21,
1972, alleged that the defendants
violated Section 1 of the Sherman Act
by agreeing to fix commission rates in
connection with the sale of property in
the Pittsburgh metropolitan area. The
complaint alleged, inter alia, that the
defendants published, circulated, and
adhered to the agreed-upon uniform
rates of commissions and fees. On April
16, 1973, the United States filed its
proposed consent judgment. The Court
entered the judgment on May 21, 1973.
The Realtors Association of
Metropolitan Pittsburgh (‘‘RAMP’’) is
the successor-in-interest to defendant
Greater Pittsburgh Board of Realtors,
RAMP is a local real estate board which
governs the membership and
professional responsibility of the
Realtors who list and show properties in
the Pittsburgh metropolitan area.
Pursuant to section III of the Final
Judgment, the consent decree is binding
on RAMP.
Traditionally, real estate agents have
charged sellers of property a
commission based on a percentage of
the sales price of the property sold. The
majority of real estate agents will price
their services in this manner. However,
some real estate agents are now using
alternative business models and
charging flat fees for their services.
Typically, these models offer property
sellers savings vis a vis traditional
commission based services. At least one
discount broker, Help-U-Sell Dixie
Realty (‘‘HUS’’), has entered the
Pittsburgh market with an alternative
business model.
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In order to educate consumers about
the availability of alternatively priced
services, discount brokers need to
advertise information about their fees
and service plans. RAMP currently
publishes Pittsburgh Homes Guide by
Realtors (‘‘Homes Guide’’), a real estate
listings magazine. The magazine
contains advertisements purchased by
member real estate professionals with
information about available homes for
sale and the services they provide.
Homes Guide is the only real estate
advertising publication covering all of
the Pittsburgh metropolitan area. Homes
Guide is a popular vehicle for Pittsburgh
area real estate brokers to advertise their
services to consumers and is
significantly less expensive than
newspaper advertising.
HUS has attempted to advertise fees
and potential savings in Homes Guide.
RAMP has informed HUS that it will not
publish advertising containing
commission rates or cost savings claims
because the Final Judgment prohibits
such publication. Section IV(C) of the
Final Judgment enjoined the defendants
from ‘‘[a]dopting, suggesting, publishing
or distributing any rate or amount of
commissions or other fees for the sale,
lease or management of real estate.
* * *’’
Section IV(C) of the Final Judgment
served a useful purpose and was entered
to remedy the defendants’ alleged price
fixing which artificially raised prices
above their competitive level. The intent
of the decree was to eliminate collusive
behavior and promote competitive
commissions among real estate brokers.
With the growth of discount brokerage
services, however, the provision no
longer serves competition and has the
effect of restricting legitimate
advertising of competitive rates. The
United States, therefore, moves to
eliminate the words ‘‘publishing’’ and
‘‘distributing’’ from section IV(C) of the
judgment so that RAMP is not
prohibited from publishing competing
commission rates.
Because IV(C), due to changed
circumstances, now serves principally
to inhibit competition, the United States
moves to modify section IV(C) to enjoin
the defendants only from:
(C) Adopting or suggesting any rate or
amount of commissions or other fees for the
sale, lease or management of real estate,
provided, however, that surveys and studies
may be conducted, published and distributed
where not forbidden by Paragraph D of this
Section IV of the Modified Final Judgment.
To further clarify the decree, the United
States moves to amend paragraph IX,
which begins, ‘‘[n]othing in this final
Judgment shall be deemed to prohibit,’’
to add the following language:
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(C) The publication of advertisements that
include the commission rates of individual
brokers, provided that the Defendants shall
not adopt or suggest rates as proscribed by
Section IV(C).
To clarify that RAMP has not
consented to the Modified Final
Judgment, the United States moves to
amend the preamble paragraphs of the
Final Judgment. Specifically, the United
States moves to replace each instance of
the phrase ‘‘this Final Judgment’’ with
‘‘the original Final Judgment.’’ In
addition, the United States seeks to add
the clause, ‘‘and upon the United States’
sole motion to modify the Final
Judgment.
II. The Legal Standards Applicable to
Modification of an Antitrust Judgment
With the Consent of the Government
This Court has jurisdiction to modify
the Final Judgment pursuant to
Paragraph XI of the Judgment, the
Federal Rules of Civil Procedure, Fed. R.
Civ. P. 60(b)(5), and ‘‘principles
inherent in the jurisdiction of the
chancery.’’ United States v. Swift & Co.,
286 U.S. 106, 114 (1932); see also In re
Grand Jury Procedures, 827 F. 2d 868,
873 (2d Cir. 1987). Where, as here, the
United States, as plaintiff, unilaterally
proposes a modification to a consent
judgment and the modification does not
further restrict the defendants’ rights or
actions, the Court should apply the
same standard as when the United
States and defendants both consent to a
modification. When the government
unilaterally seeks to modify a decree,
the court evaluates the modifications in
light of both how the additional burdens
imposed by the proposed modifications
affect the defendant’s due process rights
and the public interest. Cf. Duran v.
Elrod, 760 F. 2d 756, 759 (7th Cir. 1985).
However, where both the government
and the defendant consent to
modifications, the court focuses solely
on the public interest aspects of the
calculus. See, e.g., United States v. W.
Elec. Co., 993 F. 2d 1572, 1576 (D.C. Cir.
1993); United States v. W. Elec. Co., 900
F. 2d 283, 305 (D.C. Cir. 1990); United
States v. Loew’s, Inc., 783 F. Supp. 211,
213 (S.D.N.Y. 1992); United States v.
Columbia Artists Mgmt., Inc., 662 F.
Supp. 865, 869–70 (S.D.N.Y. 1987)
(citing United States v. Swift & Co.,
1975–1 Trade Cas. (CCH) ¶ 60.201, at
65.702–03 (N.D. III 1975)). Here, the
proposed modifications do not further
impinge the defendant’s rights, so the
court need only evaluate the proposed
modifications in light of the public
interest. Thus, the issue before the Court
is whether modifications is in the public
interest. This is the same standard that
a district court applies in reviewing an
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initial consent judgment in a
government antitrust case. The
judiciary’s role in determining whether
the initial entry of a consent decree is
in the public interest, absent a showing
of abuse of discretion or a failure to
discharge its duty on the part of the
government, is to ‘‘inquire * * * into
the purpose, meaning, and efficacy of
the decree.’’ United States v. Microsoft,
56 F. 3d 1448, 1462 (D.C. Cir. 1995).
The purpose of the antitrust laws is to
protect competition. See, e.g., United
States v. Penn-Olin Chem. Co., 378 U.S.
158, 170 (1964) (antitrust laws reflect ‘‘a
national policy enunciated by the
Congress to preserve and promote a free
competitive economy’’). The relevant
question before the court therefore is
whether modification of the Judgment
would serve the public interest in ‘‘free
and unfettered competition as the rule
of trade.’’ N. Pac. Ry Co. v. United
States, 356 U.S. 1, 4 (1958) see also
United States v. W. Elec. Co., 900 F. 2d
at 308; United States v. Am Cyanamid,
719 F.2d 558, 565 (2d Cir. 1983), cert
denied, 405 U.S. 1101 (1984); United
States v. Columbia Artists Mgmt., 66 F.
Sup. 865, 870 (S.D.N.Y. 1987). Here, the
Court should modify the decree as
requested because it will remove a legal
roadblock to brokers who want to
advertise lower commissions to the
benefit of home buyers and sellers.
Although the proposed modification
is designed to allow RAMP more
freedom in choosing what it can publish
in its magazine, RAMP has declined to
join the United States in its motion to
modify the Final Judgment and has
failed to offer an explanation to the
United States as to why the public
interest is served by the restriction.
III. The Proposed Modification Satisfies
the Public Interest Standard
The purpose behind the consent
decree’s prohibition on advertising
stemmed from the publication of prices
after the defendants had agreed on
commission rates among themselves.
The primary concern with the conduct
that led to the decree was the agreement
on prices, not the publication of
unilaterally determined prices.
Modifying the consent decree as the
United States’ proposes will permit
RAMP to allow price advertising but
will still enjoin RAMP from ‘‘adopting’’
or ‘‘suggesting’’ fees for real estate
services.
Further, ‘‘[r]estriction on [truthful]
advertising are a form of output
restriction in the production of
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information useful to consumers.’’ 1
Modifying the consent decree as the
United States proposes will satisfy the
public interest standard because price
competition will be enhanced by
allowing consumers access to more
information about different prices
charged by individual real estate agents.
Further, the public will benefit from
access to information about differing
rate structures and fees charged by
different agents and such information
will reduce search costs by consumers
seeking real estate services.
IV. Public Comment Period
The United States does not believe
that this modification is subject to the
Antitrust Procedures and Penalties Act
(‘‘Tunney Act’’), 15 U.S.C. 16(b)–(h).
However, in this case, the United States
intends to follow the comment
procedures outlined in the attached
Explanation of Procedures.
It is the policy of the United States
that an appropriate effort be taken to
notify potentially interested persons of
the pendency of the motion. In this case,
the United States will publish a notice
announcing the motion to modify in the
Federal Register and the Pittsburgh Post
Gazette, summarizing the motion and
the proposed modified final judgment,
describing the procedures for obtaining
copies of the relevant papers and
inviting the submission of comments
within 30 days of publication. Within a
reasonable time after the comment
period, the United States will file any
comments it receives and its responses
with the Court. The United States
requests that the Court not rule upon the
motion until the United States has filed
any comments and its responses or has
notified the Court that no comments
were received. The procedure is
designed to notify all potentially
interested persons that a motion to
modify the Final Judgment is pending
and provide them adequate opportunity
to comment thereon.
V. Conclusion
For the foregoing reasons, the United
States requests that the Court enter the
proposed Order Modifying Judgment to
enjoin, the defendants from:
(C) Adopting or suggesting any rate or
amount of commissions or other fees for the
sale, lease management of real estate;
provided, however, that surveys and studies
may be conducted, published and distributed
where not forbidden by Paragraph D of this
Section IV of the Modified Final Judgment.
and to amend paragraph IX, which
begins, ‘‘[n]othing in this Final
1 Philip Areeda, Antitrust Law, ¶ 2023b1, 184,
Volume XI (2nd Ed.).
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Judgment shall be deemed to prohibit,’’
to add the following language:
(C) The publication of advertisements that
include the commission rates of individual
brokers, provided that the Defendants shall
not adopt or suggest rates as proscribed by
Section IV(C).
and to amend the preamble paragraphs
to state:
Plaintiff, United States of America, having
filed its Complaint herein on June 21, 1972,
and Plaintiff and Defendants by their
respective attorneys, having consented to the
making and entry of the original Final
Judgment, without admission by any party in
respect to any issue and without this Final
Judgment constituting evidence or an
admission by any party hereto with respect
to any such issue;
NOW, THEREFORE, before any testimony
has been taken herein, without trial or
adjudication of any issue of fact or law
herein, and upon the consent of the parties
to the original Final Judgment, and upon the
United States’ sole motion to modify the
Final Judgment, it is hereby ORDERED,
ADJUDGED and DECREED as follows:
Dated this 28th day of June, 2005.
Respectfully Submitted,
Now, therefore, before any testimony
has been taken herein, without trial or
adjudication of any issue of fact or law
herein, and upon the consent of the
parties to the original Final Judgment,
and upon the United States’ sole motion
to modify the Final Judgment, it is
hereby
Ordered, adjudged and decreed as
follows:
I
For the purposes of this case, this
Court has jurisdiction over the subject
matter of this action and of the parties
hereto. For purposes of this case, the
Complaint states claims upon which
relief may be granted against the
Defendants under Section I of the Act of
Congress of July 2, 1890, as amended
(15 U.S.C. 1), commonly known as the
Sherman Act.
II
As used in this Final Judgment:
(A) ‘‘Multiple Listing Service’’ shall
mean any plan or program operated by
a Defendant for the circulation of real
For Plaintiff United States of America
property listings among members of
lllllllllllllllllllll such Defendant; and
Leslie Peritz,
(B) ‘‘Person’’ shall mean any
PA Bar No. 87539, Litigation II Section,
individual, partnership, firm,
Antitrust Division, U.S. Department of
association, corporation, real estate
Justice, 1401 H Street, NW., Ste. 3000,
agency, member of the Defendants or
Washington, DC 20530, 202–514–9602.
other business or legal entity.
lllllllllllllllllllll
Erika L. Meyers,
Joan Hogan,
Litigation III Section, Antitrust Division, U.S.
Department of Justice, 325 7th St., NW.,
Ste. 300, Washington, DC 20530, 202–514–
8374.
United States District Court for the
Western District of Pennsylvania
United States of America, Plaintiff, v.
Greater Pittsburgh Board of Realtors,
East Suburban Multilist Real Estate
Brokers, Inc., South Hills Multilist, Inc.,
North Suburban Multilist, and Greater
Pittsburgh Multilist Council,
Defendants.
Civil No. 72–499
Filed
Entered:
Modified Final Judgment
Plaintiff, United States of America,
having filed its Complaint herein on
June 21, 1972, and Plaintiff and
Defendants by their respective
attorneys, having consented to the
making and entry of the original Final
Judgment, without admission by any
party in respect to any issue and
without this Final Judgment
constituting evidence or an admission
by any party hereto with respect to any
such issue;
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III
The provisions of this Final Judgment
applicable to each of the Defendants
shall also apply to each of their
respective subsidiaries, successors and
assigns; to each of their directors,
officers, agents and employees, when
acting in such respective capacities;
and, in addition, to all persons in active
concert or participation with any of
them who receive actual notice of this
Final Judgment by personal service or
otherwise.
IV
Each of the Defendants, whether
acting unilaterally or in concert or
agreement with any other person, is
enjoined and restrained from:
(A) Fixing, establishing or
maintaining any rate or amount of
commissions or other fees for the sale,
lease or management of real estate;
(B) Urging, recommending or
suggesting that any of its members or
any other person adhere to any rate or
amount of commissions or other fees for
the sale, lease or management of real
estate;
(C) Adopting or suggesting any rate or
amount of commissions or other fees for
the sale, lease or management of real
estate; provided, however, that surveys
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and studies may be conducted,
published and distributed where not
forbidden by Paragraph D of this Section
IV of this Final Judgment;
(D) Conducting, publishing or
distributing, for a period of ten (10)
years from the date of entry of this Final
Judgment, any survey or study relating
to rates or amounts of commissions or
other fees for the sale, lease or
management of real estate or ranges
thereof; and thereafter where the
purpose or effect of any such survey or
study would be to fix, establish,
stabilize or maintain any rate or amount
or ranges of commissions or other fees
for the sale, lease or management of real
estate;
(E) Adopting, adhering to,
maintaining, enforcing or claiming any
rights under any by-law, rule,
regulation, plan or program which
restricts or limits the right of any of its
members or any other real estate dealer
in accordance with his own business
judgment to agree with his client on any
commissions or fees for the sale, lease
or management of real estate;
(F) Taking any punitive action against
any of its members where such action is
based upon the member’s failure or
refusal to adhere to any rate or amount
of commissions or fees for the sale, lease
or management of real estate;
(G) Interfering with or limiting its
members from maintaining part-time
salesmen in their employ, or interfering
with the terms of the relationship
between its members and their salesmen
where to do so would be contrary to or
inconsistent with any provision of this
Final Judgment;
(H) Fixing, maintaining, suggesting or
enforcing any division or split between
a selling broker and listing broker of
commissions or other fees for the sale,
lease or management of real estate;
(I) Refusing to receive, process or
distribute a listing of any real estate by
any member in a Multiple Listing
Service because of the rate or amount of
commissions or other fees for the sale,
lease or management of real estate
thereon; and
(J)(1) Boycotting, agreeing to boycott,
or threatening to boycott any person;
and/or (2) refusing to do business with
any person where such refusal would be
contrary to or inconsistent with any
provision of this Final Judgment.
V
Each Defendant is ordered to
eliminate from all rules, by-laws,
regulations, contracts and other forms,
any schedule of rates or amounts of
commissions or other fees for the sale,
lease or management of real estate and
any provision requiring or suggesting a
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fixed division of such fees between a
listing broker and a selling broker. Each
Defendant is also ordered to insert in all
rules, by-laws, regulations, contract and
other forms a statement, prominently
situated in all capital letters, that rates
of commissions or other fees for the
sale, lease or management of real estate
shall be negotiable between a broker and
his client.
VI
(A) Defendant Greater Pittsburgh
Board of Realtors shall, upon
application made, admit to membership
any person duly licensed by the
appropriate governmental authority to
sell real estate in Pennsylvania as a real
estate salesman or as a real estate broker
and each of the other Defendants shall,
upon application made, admit to
membership any person duly licensed
by the appropriate governmental
authority to sell real estate in
Pennsylvania as a real estate broker;
provided, however, that the Defendants
may adopt and maintain reasonable and
nondiscriminatory written requirements
for membership, not otherwise
inconsistent with the provisions of this
Final Judgment;
(B) Each of the Defendants is ordered
and directed within ninety (90) days
from the date of entry of this Final
Judgment to amend its by-laws, rules
and regulations by eliminating
therefrom any provision which is
contrary to or inconsistent with any
provision of this Final Judgment; and
(C) Upon amendment of its by-laws,
rules and regulations as aforesaid, each
Defendant is thereafter enjoined and
restrained from adopting, adhering to,
enforcing or claiming any right under
any by-law, rule or regulation which is
contrary to or inconsistent with any of
the provisions of this Final Judgment.
VII
Each of the Defendants is ordered and
directed to mail within sixty (60) days
after the date of entry of this Final
Judgment, a copy of this Final Judgment
to each of its members and to the
persons listed in Schedule (A) attached
to this Final Judgment and within one
hundred and twenty (120) days from the
aforesaid date of entry to file with Clerk
of this Court, an affidavit setting forth
the fact and manner of the compliance
with this Section VII and Sections V and
VI (B) above.
VIII
For a period of ten (10) years from the
date of entry of this Final Judgment,
each Defendant is ordered to file with
the Plaintiff on each anniversary date of
such entry, a report setting forth the
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steps which it has taken during the prior
year to advise the Defendants’
appropriate officers, directors, agents
and employees to its and their
obligations under this Final Judgment.
IX
Nothing in this Final Judgment shall
be deemed to prohibit:
(A) The publication or circulation by
a Multiple Listing Service of
information, in connection with bona
fide efforts to sell real estate, concerning
the commission which a broker has
agreed upon with his client, or the
percentage division thereof which a
listing broker has agreed to pay a selling
broker, arrived at in accordance with
this Final Judgment; or
(B) The adoption and enforcement by
a Multiple Listing Service of rules
requiring (i) that neither the commission
nor the percentage division thereof,
arrived at in accordance with this Final
Judgment and specified for a listing not
to exceed a reasonable period, may be
altered without the consent of both the
listing and the selling broker, and (ii)
that the recipient of any such
commission promptly pay over to the
listing or selling broker, as appropriate,
the percentage division of the
commission as specified or as otherwise
agreed upon by the listing and selling
broker; or
(C) The publication of advertisements
that include the commission rates of
individual brokers, provided that the
Defendants shall not adopt or suggest
rates as proscribed in Section IV(C).
X
For the purpose of determining or
securing compliance with this Final
Judgment:
Duly authorized representatives of the
Department of Justice shall, upon
written request of the Attorney General
or the Assistant Attorney General in
charge of the Antitrust division, and on
reasonable notice to a defendant made
to its principal office, be permitted,
subject to any legally recognized
privilege, and subject to the presence of
counsel if so desired:
(1) Access during its office hours to
all books, ledgers, accounts,
correspondence, memoranda, and other
records and documents in the
possession of or under the control of
such defendant relating to any matters
contained in this Final Judgment; and
(2) Subject to the reasonable
convenience of such defendant, and
without restraint or interference from it
to interview officers or employees of
such defendant regarding any such
matters.
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Upon such written request, each
defendant shall submit such reports in
writing, under oath if so requested, to
the Department of Justice with respect
to any of the matters contained in this
Final Judgment as may from time to
time be requested.
No information obtained by the means
provided in this Section X shall be
divulged by any representative of the
Department of Justice to any person,
other than a duly authorized
representative of the Executive Branch
of plaintiff, except in the course of legal
proceedings to which the United States
of America is a party for the purpose of
securing compliance with this Final
Judgment or as otherwise required by
law.
XI
Jurisdiction is retained by this curt for
the purpose of enabling any of the
parties to this Final Judgment to apply
to this court at any time for such further
orders and directions as may be
necessary or appropriate for the
construction or carrying out of this Final
Judgment, for the modification of any of
the provisions hereof, for the
enforcement of compliance therewith;
and for the punishment of violations
thereof.
Dated:
lllllllllllllllllllll
United States District Judge
[FR Doc. 05–13532 Filed 7–8–05; 8:45 am]
BILLING CODE 4410–11–M
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—AAF Association, Inc.
Notice is hereby given that, on June
15, 2005, pursuant to section 6(a) of the
National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’), AAF Association,
Inc. has filed written notification
simultaneously with the Attorney
General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, Visible World, Inc., New
York, NY has been added as a party to
this venture. Also, Cakewalk, Boston,
MA; Eastman Kodak, Rochester, NY; S/
4/M Solutions for Media, Cologne,
GERMANY; and SGI, Mountain View,
VerDate jul<14>2003
16:03 Jul 08, 2005
Jkt 205001
CA have withdrawn as parties to this
venture. The following member has
changed its name: Discreet Logic to
Autodesk Media and Entertainment,
Montreal, Quebec, CANADA.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and AAF
Association, Inc. intends to file
additional written notification
disclosing all changes in membership.
On March 28, 2000, AAF Association,
Inc. filed its original notification
pursuant to section 6(a) of the Act. The
Department of Justice published a notice
in the Federal Register pursuant to
section 6(b) of the Act on June 29, 2000
(65 FR 40127).
The last notification was filed with
the Department on March 10, 2005. A
notice was published in the Federal
Register pursuant to Seciton 6(b) of the
Act on April 1, 2005 (70 FR 16843).
Dorothy B. Fountain,
Deputy Director of Operations, Antitrust
Division.
[FR Doc. 05–13530 Filed 7–8–05; 8:45 am]
BILLING CODE 4410–11–M
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Cable Television
Laboratories, Inc.
Notice is hereby given that, on June 8,
2005, pursuant to Section 6(a) of the
National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’) Cable Television
Laboratories, Inc. (‘‘CableLabs’’) has
filed written notifications
simultaneously with the Attorney
General and the Federal Trade
commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, CCS, LLC, d/b/a
Community Cable Service, Spokane,
WA has been added as a party to this
venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and CableLabs
intends to file additional written
notifications disclosing all changes in
membership.
PO 00000
Frm 00082
Fmt 4703
Sfmt 4703
On August 8, 1988, CableLabs filed its
original notification pursuant to Section
6(a) of the Act. the Department of Justice
published a notice in the Federal
Register pursuant to Section 6(b) of the
Act on September 7, 1988 (53 FR
34593).
The last notification was filed with
the Department on February 17, 2005. A
notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on March 25, 2005 (70 FR 15351).
Dorothy B. Fountain,
Deputy Director of Operations, Antitrust
Division.
[FR Doc. 05–13529 Filed 7–8–05; 8:45 am]
BILLING CODE 4410–11–M
DEPARTMENT OF JUSTICE
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Semiconductor Test
Consortium, Inc.
Notice is hereby given that, on June
17, 2005, pursuant to Section 6(a) of the
National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’), Semiconductor Test
Consortium, Inc. has filed written
notifications simultaneously with the
Attorney General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, Matsushita Electric Works,
Osaka, JAPAN; Pintail Technologies,
Plano, TX; and W.L. Gore (individual
member), Elkton, MD have been added
as parties to this venture. Also, Artest
Corporation, Sunnyvale, CA; Freescale
Semiconductor (formerly Motorola),
Austin, TX; Invoys Corporation,
Pleasanton, CA; and Pragmatics
Technologies, San Jose, CA have
withdrawn as parties to this venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and
Semiconductor Test Consortium, Inc.
intends to file additional written
notification disclosing all changes in
membership.
On May 27, 2003, Semiconductor Test
Consortium, Inc. filed its original
notification pursuant to Section 6(a) of
the Act. The Department of Justice
published a notice in the Federal
Register pursuant to Section 6(b) of the
Act on June 17, 2003 (69 FR 35913).
E:\FR\FM\11JYN1.SGM
11JYN1
]]>Agencies
[Federal Register Volume 70, Number 131 (Monday, July 11, 2005)]
[Notices]
[Pages 39792-39796]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13532]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Greater Pittsburgh Board of Realtors; Motion of
the United States for Modification of the Final Judgment
Notice is hereby given that a Motion for Modification of the Final
Judgment, proposed Final Judgment and proposed Order have been filed
with the United States District Court for the Western District of
Pennsylvania. United States of America v. Greater Pittsburgh Board of
Realtors, Civil Action No. 72-499. The Realtors Association of
Metropolitan Pittsburgh (``RAMP''), the successor to the Greater
Pittsburgh Broad of Realtors, is bound by a Final Judgment that settled
allegations defendants published, circulated, and adhered to agreed-
upon uniform rates of commissions and fees in violation of the Sherman
Act. The Final Judgment was entered on May 21, 1973 and prohibited the
defendants from agreeing on prices and from publishing any rate or
commission for the sale of real estate.
RAMP publishes Pittsburgh Homes Guide by Realtors, a real estate
listings magazine. Member real estate professionals purchase
advertising to describe the services they offer. At least one firm
offering real estate brokerage services has attempted to purchase
advertising that would contain information about discounted fees. RAMP
has informed that firm that it will not published the advertising
because the Final Judgment prohibits it. The modified consent decree
would strike that provision and add a provision making it clear that
RAMP can publish information about real estate commissions and fees set
by an individual broker. If approved by the Court, the new decree will
allow the public access to more information about different kinds of
fees charged by real estate professionals who help sell homes. The
decree will still serve its original purpose: to enjoin RAMP and its
member brokers from agreeing on prices. Copies of the Motion, proposed
Final Judgment and Order are available for inspection at the Department
of Justice in Washington, DC in Room 200, 325 Seventh Street, NW., on
the Internet at https://www.usdoj.gov/atr, and at the Office of the
Clerk of the United States District Court for the Western District of
Pennsylvania, 829 United States Courthouse, 7th and Grant Street,
Pittsburgh, PA 15219.
Public comment is invited within 30 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 directed
to John R. Read, Chief, Litigation III Section, Antitrust Division,
Department of Justice, 325 7th ST., NW., Suite 300, Washington, DC
20530, (telephone: (202) 616-5935).
J. Robert Kramer II,
Director of Operations, Antitrust Division.
United States District Court for the Western District of Pennsylvania
United States of America, Plaintiff, v. Greater Pittsburgh Board of
Realtors, East Suburban Multilist Real Estate Brokers, Inc., South
Hills Multilist, Inc., North Suburban Multilist, and Greater Pittsburgh
Multilist Council, Defendants.
Civil No. 72-499
Filed:
Entered:
The United States moves this Court to modify the Final Judgment
entered in this case.
I. Background
The Complaint, filed on June 21, 1972, alleged that the defendants
violated Section 1 of the Sherman Act by agreeing to fix commission
rates in connection with the sale of property in the Pittsburgh
metropolitan area. The complaint alleged, inter alia, that the
defendants published, circulated, and adhered to the agreed-upon
uniform rates of commissions and fees. On April 16, 1973, the United
States filed its proposed consent judgment. The Court entered the
judgment on May 21, 1973.
The Realtors Association of Metropolitan Pittsburgh (``RAMP'') is
the successor-in-interest to defendant Greater Pittsburgh Board of
Realtors, RAMP is a local real estate board which governs the
membership and professional responsibility of the Realtors who list and
show properties in the Pittsburgh metropolitan area. Pursuant to
section III of the Final Judgment, the consent decree is binding on
RAMP.
Traditionally, real estate agents have charged sellers of property
a commission based on a percentage of the sales price of the property
sold. The majority of real estate agents will price their services in
this manner. However, some real estate agents are now using alternative
business models and charging flat fees for their services. Typically,
these models offer property sellers savings vis a vis traditional
commission based services. At least one discount broker, Help-U-Sell
Dixie Realty (``HUS''), has entered the Pittsburgh market with an
alternative business model.
[[Page 39793]]
In order to educate consumers about the availability of
alternatively priced services, discount brokers need to advertise
information about their fees and service plans. RAMP currently
publishes Pittsburgh Homes Guide by Realtors (``Homes Guide''), a real
estate listings magazine. The magazine contains advertisements
purchased by member real estate professionals with information about
available homes for sale and the services they provide. Homes Guide is
the only real estate advertising publication covering all of the
Pittsburgh metropolitan area. Homes Guide is a popular vehicle for
Pittsburgh area real estate brokers to advertise their services to
consumers and is significantly less expensive than newspaper
advertising.
HUS has attempted to advertise fees and potential savings in Homes
Guide. RAMP has informed HUS that it will not publish advertising
containing commission rates or cost savings claims because the Final
Judgment prohibits such publication. Section IV(C) of the Final
Judgment enjoined the defendants from ``[a]dopting, suggesting,
publishing or distributing any rate or amount of commissions or other
fees for the sale, lease or management of real estate. * * *''
Section IV(C) of the Final Judgment served a useful purpose and was
entered to remedy the defendants' alleged price fixing which
artificially raised prices above their competitive level. The intent of
the decree was to eliminate collusive behavior and promote competitive
commissions among real estate brokers. With the growth of discount
brokerage services, however, the provision no longer serves competition
and has the effect of restricting legitimate advertising of competitive
rates. The United States, therefore, moves to eliminate the words
``publishing'' and ``distributing'' from section IV(C) of the judgment
so that RAMP is not prohibited from publishing competing commission
rates.
Because IV(C), due to changed circumstances, now serves principally
to inhibit competition, the United States moves to modify section IV(C)
to enjoin the defendants only from:
(C) Adopting or suggesting any rate or amount of commissions or
other fees for the sale, lease or management of real estate,
provided, however, that surveys and studies may be conducted,
published and distributed where not forbidden by Paragraph D of this
Section IV of the Modified Final Judgment.
To further clarify the decree, the United States moves to amend
paragraph IX, which begins, ``[n]othing in this final Judgment shall be
deemed to prohibit,'' to add the following language:
(C) The publication of advertisements that include the
commission rates of individual brokers, provided that the Defendants
shall not adopt or suggest rates as proscribed by Section IV(C).
To clarify that RAMP has not consented to the Modified Final
Judgment, the United States moves to amend the preamble paragraphs of
the Final Judgment. Specifically, the United States moves to replace
each instance of the phrase ``this Final Judgment'' with ``the original
Final Judgment.'' In addition, the United States seeks to add the
clause, ``and upon the United States' sole motion to modify the Final
Judgment.
II. The Legal Standards Applicable to Modification of an Antitrust
Judgment With the Consent of the Government
This Court has jurisdiction to modify the Final Judgment pursuant
to Paragraph XI of the Judgment, the Federal Rules of Civil Procedure,
Fed. R. Civ. P. 60(b)(5), and ``principles inherent in the jurisdiction
of the chancery.'' United States v. Swift & Co., 286 U.S. 106, 114
(1932); see also In re Grand Jury Procedures, 827 F. 2d 868, 873 (2d
Cir. 1987). Where, as here, the United States, as plaintiff,
unilaterally proposes a modification to a consent judgment and the
modification does not further restrict the defendants' rights or
actions, the Court should apply the same standard as when the United
States and defendants both consent to a modification. When the
government unilaterally seeks to modify a decree, the court evaluates
the modifications in light of both how the additional burdens imposed
by the proposed modifications affect the defendant's due process rights
and the public interest. Cf. Duran v. Elrod, 760 F. 2d 756, 759 (7th
Cir. 1985). However, where both the government and the defendant
consent to modifications, the court focuses solely on the public
interest aspects of the calculus. See, e.g., United States v. W. Elec.
Co., 993 F. 2d 1572, 1576 (D.C. Cir. 1993); United States v. W. Elec.
Co., 900 F. 2d 283, 305 (D.C. Cir. 1990); United States v. Loew's,
Inc., 783 F. Supp. 211, 213 (S.D.N.Y. 1992); United States v. Columbia
Artists Mgmt., Inc., 662 F. Supp. 865, 869-70 (S.D.N.Y. 1987) (citing
United States v. Swift & Co., 1975-1 Trade Cas. (CCH) ] 60.201, at
65.702-03 (N.D. III 1975)). Here, the proposed modifications do not
further impinge the defendant's rights, so the court need only evaluate
the proposed modifications in light of the public interest. Thus, the
issue before the Court is whether modifications is in the public
interest. This is the same standard that a district court applies in
reviewing an initial consent judgment in a government antitrust case.
The judiciary's role in determining whether the initial entry of a
consent decree is in the public interest, absent a showing of abuse of
discretion or a failure to discharge its duty on the part of the
government, is to ``inquire * * * into the purpose, meaning, and
efficacy of the decree.'' United States v. Microsoft, 56 F. 3d 1448,
1462 (D.C. Cir. 1995).
The purpose of the antitrust laws is to protect competition. See,
e.g., United States v. Penn-Olin Chem. Co., 378 U.S. 158, 170 (1964)
(antitrust laws reflect ``a national policy enunciated by the Congress
to preserve and promote a free competitive economy''). The relevant
question before the court therefore is whether modification of the
Judgment would serve the public interest in ``free and unfettered
competition as the rule of trade.'' N. Pac. Ry Co. v. United States,
356 U.S. 1, 4 (1958) see also United States v. W. Elec. Co., 900 F. 2d
at 308; United States v. Am Cyanamid, 719 F.2d 558, 565 (2d Cir. 1983),
cert denied, 405 U.S. 1101 (1984); United States v. Columbia Artists
Mgmt., 66 F. Sup. 865, 870 (S.D.N.Y. 1987). Here, the Court should
modify the decree as requested because it will remove a legal roadblock
to brokers who want to advertise lower commissions to the benefit of
home buyers and sellers.
Although the proposed modification is designed to allow RAMP more
freedom in choosing what it can publish in its magazine, RAMP has
declined to join the United States in its motion to modify the Final
Judgment and has failed to offer an explanation to the United States as
to why the public interest is served by the restriction.
III. The Proposed Modification Satisfies the Public Interest Standard
The purpose behind the consent decree's prohibition on advertising
stemmed from the publication of prices after the defendants had agreed
on commission rates among themselves. The primary concern with the
conduct that led to the decree was the agreement on prices, not the
publication of unilaterally determined prices. Modifying the consent
decree as the United States' proposes will permit RAMP to allow price
advertising but will still enjoin RAMP from ``adopting'' or
``suggesting'' fees for real estate services.
Further, ``[r]estriction on [truthful] advertising are a form of
output restriction in the production of
[[Page 39794]]
information useful to consumers.'' \1\ Modifying the consent decree as
the United States proposes will satisfy the public interest standard
because price competition will be enhanced by allowing consumers access
to more information about different prices charged by individual real
estate agents. Further, the public will benefit from access to
information about differing rate structures and fees charged by
different agents and such information will reduce search costs by
consumers seeking real estate services.
---------------------------------------------------------------------------
\1\ Philip Areeda, Antitrust Law, ] 2023b1, 184, Volume XI (2nd
Ed.).
---------------------------------------------------------------------------
IV. Public Comment Period
The United States does not believe that this modification is
subject to the Antitrust Procedures and Penalties Act (``Tunney Act''),
15 U.S.C. 16(b)-(h). However, in this case, the United States intends
to follow the comment procedures outlined in the attached Explanation
of Procedures.
It is the policy of the United States that an appropriate effort be
taken to notify potentially interested persons of the pendency of the
motion. In this case, the United States will publish a notice
announcing the motion to modify in the Federal Register and the
Pittsburgh Post Gazette, summarizing the motion and the proposed
modified final judgment, describing the procedures for obtaining copies
of the relevant papers and inviting the submission of comments within
30 days of publication. Within a reasonable time after the comment
period, the United States will file any comments it receives and its
responses with the Court. The United States requests that the Court not
rule upon the motion until the United States has filed any comments and
its responses or has notified the Court that no comments were received.
The procedure is designed to notify all potentially interested persons
that a motion to modify the Final Judgment is pending and provide them
adequate opportunity to comment thereon.
V. Conclusion
For the foregoing reasons, the United States requests that the
Court enter the proposed Order Modifying Judgment to enjoin, the
defendants from:
(C) Adopting or suggesting any rate or amount of commissions or
other fees for the sale, lease management of real estate; provided,
however, that surveys and studies may be conducted, published and
distributed where not forbidden by Paragraph D of this Section IV of
the Modified Final Judgment.
and to amend paragraph IX, which begins, ``[n]othing in this Final
Judgment shall be deemed to prohibit,'' to add the following language:
(C) The publication of advertisements that include the
commission rates of individual brokers, provided that the Defendants
shall not adopt or suggest rates as proscribed by Section IV(C).
and to amend the preamble paragraphs to state:
Plaintiff, United States of America, having filed its Complaint
herein on June 21, 1972, and Plaintiff and Defendants by their
respective attorneys, having consented to the making and entry of
the original Final Judgment, without admission by any party in
respect to any issue and without this Final Judgment constituting
evidence or an admission by any party hereto with respect to any
such issue;
NOW, THEREFORE, before any testimony has been taken herein,
without trial or adjudication of any issue of fact or law herein,
and upon the consent of the parties to the original Final Judgment,
and upon the United States' sole motion to modify the Final
Judgment, it is hereby ORDERED, ADJUDGED and DECREED as follows:
Dated this 28th day of June, 2005.
Respectfully Submitted,
For Plaintiff United States of America
-----------------------------------------------------------------------
Leslie Peritz,
PA Bar No. 87539, Litigation II Section, Antitrust Division, U.S.
Department of Justice, 1401 H Street, NW., Ste. 3000, Washington, DC
20530, 202-514-9602.
-----------------------------------------------------------------------
Erika L. Meyers,
Joan Hogan,
Litigation III Section, Antitrust Division, U.S. Department of
Justice, 325 7th St., NW., Ste. 300, Washington, DC 20530, 202-514-
8374.
United States District Court for the Western District of Pennsylvania
United States of America, Plaintiff, v. Greater Pittsburgh Board of
Realtors, East Suburban Multilist Real Estate Brokers, Inc., South
Hills Multilist, Inc., North Suburban Multilist, and Greater Pittsburgh
Multilist Council, Defendants.
Civil No. 72-499
Filed
Entered:
Modified Final Judgment
Plaintiff, United States of America, having filed its Complaint
herein on June 21, 1972, and Plaintiff and Defendants by their
respective attorneys, having consented to the making and entry of the
original Final Judgment, without admission by any party in respect to
any issue and without this Final Judgment constituting evidence or an
admission by any party hereto with respect to any such issue;
Now, therefore, before any testimony has been taken herein, without
trial or adjudication of any issue of fact or law herein, and upon the
consent of the parties to the original Final Judgment, and upon the
United States' sole motion to modify the Final Judgment, it is hereby
Ordered, adjudged and decreed as follows:
I
For the purposes of this case, this Court has jurisdiction over the
subject matter of this action and of the parties hereto. For purposes
of this case, the Complaint states claims upon which relief may be
granted against the Defendants under Section I of the Act of Congress
of July 2, 1890, as amended (15 U.S.C. 1), commonly known as the
Sherman Act.
II
As used in this Final Judgment:
(A) ``Multiple Listing Service'' shall mean any plan or program
operated by a Defendant for the circulation of real property listings
among members of such Defendant; and
(B) ``Person'' shall mean any individual, partnership, firm,
association, corporation, real estate agency, member of the Defendants
or other business or legal entity.
III
The provisions of this Final Judgment applicable to each of the
Defendants shall also apply to each of their respective subsidiaries,
successors and assigns; to each of their directors, officers, agents
and employees, when acting in such respective capacities; and, in
addition, to all persons in active concert or participation with any of
them who receive actual notice of this Final Judgment by personal
service or otherwise.
IV
Each of the Defendants, whether acting unilaterally or in concert
or agreement with any other person, is enjoined and restrained from:
(A) Fixing, establishing or maintaining any rate or amount of
commissions or other fees for the sale, lease or management of real
estate;
(B) Urging, recommending or suggesting that any of its members or
any other person adhere to any rate or amount of commissions or other
fees for the sale, lease or management of real estate;
(C) Adopting or suggesting any rate or amount of commissions or
other fees for the sale, lease or management of real estate; provided,
however, that surveys
[[Page 39795]]
and studies may be conducted, published and distributed where not
forbidden by Paragraph D of this Section IV of this Final Judgment;
(D) Conducting, publishing or distributing, for a period of ten
(10) years from the date of entry of this Final Judgment, any survey or
study relating to rates or amounts of commissions or other fees for the
sale, lease or management of real estate or ranges thereof; and
thereafter where the purpose or effect of any such survey or study
would be to fix, establish, stabilize or maintain any rate or amount or
ranges of commissions or other fees for the sale, lease or management
of real estate;
(E) Adopting, adhering to, maintaining, enforcing or claiming any
rights under any by-law, rule, regulation, plan or program which
restricts or limits the right of any of its members or any other real
estate dealer in accordance with his own business judgment to agree
with his client on any commissions or fees for the sale, lease or
management of real estate;
(F) Taking any punitive action against any of its members where
such action is based upon the member's failure or refusal to adhere to
any rate or amount of commissions or fees for the sale, lease or
management of real estate;
(G) Interfering with or limiting its members from maintaining part-
time salesmen in their employ, or interfering with the terms of the
relationship between its members and their salesmen where to do so
would be contrary to or inconsistent with any provision of this Final
Judgment;
(H) Fixing, maintaining, suggesting or enforcing any division or
split between a selling broker and listing broker of commissions or
other fees for the sale, lease or management of real estate;
(I) Refusing to receive, process or distribute a listing of any
real estate by any member in a Multiple Listing Service because of the
rate or amount of commissions or other fees for the sale, lease or
management of real estate thereon; and
(J)(1) Boycotting, agreeing to boycott, or threatening to boycott
any person; and/or (2) refusing to do business with any person where
such refusal would be contrary to or inconsistent with any provision of
this Final Judgment.
V
Each Defendant is ordered to eliminate from all rules, by-laws,
regulations, contracts and other forms, any schedule of rates or
amounts of commissions or other fees for the sale, lease or management
of real estate and any provision requiring or suggesting a fixed
division of such fees between a listing broker and a selling broker.
Each Defendant is also ordered to insert in all rules, by-laws,
regulations, contract and other forms a statement, prominently situated
in all capital letters, that rates of commissions or other fees for the
sale, lease or management of real estate shall be negotiable between a
broker and his client.
VI
(A) Defendant Greater Pittsburgh Board of Realtors shall, upon
application made, admit to membership any person duly licensed by the
appropriate governmental authority to sell real estate in Pennsylvania
as a real estate salesman or as a real estate broker and each of the
other Defendants shall, upon application made, admit to membership any
person duly licensed by the appropriate governmental authority to sell
real estate in Pennsylvania as a real estate broker; provided, however,
that the Defendants may adopt and maintain reasonable and
nondiscriminatory written requirements for membership, not otherwise
inconsistent with the provisions of this Final Judgment;
(B) Each of the Defendants is ordered and directed within ninety
(90) days from the date of entry of this Final Judgment to amend its
by-laws, rules and regulations by eliminating therefrom any provision
which is contrary to or inconsistent with any provision of this Final
Judgment; and
(C) Upon amendment of its by-laws, rules and regulations as
aforesaid, each Defendant is thereafter enjoined and restrained from
adopting, adhering to, enforcing or claiming any right under any by-
law, rule or regulation which is contrary to or inconsistent with any
of the provisions of this Final Judgment.
VII
Each of the Defendants is ordered and directed to mail within sixty
(60) days after the date of entry of this Final Judgment, a copy of
this Final Judgment to each of its members and to the persons listed in
Schedule (A) attached to this Final Judgment and within one hundred and
twenty (120) days from the aforesaid date of entry to file with Clerk
of this Court, an affidavit setting forth the fact and manner of the
compliance with this Section VII and Sections V and VI (B) above.
VIII
For a period of ten (10) years from the date of entry of this Final
Judgment, each Defendant is ordered to file with the Plaintiff on each
anniversary date of such entry, a report setting forth the steps which
it has taken during the prior year to advise the Defendants'
appropriate officers, directors, agents and employees to its and their
obligations under this Final Judgment.
IX
Nothing in this Final Judgment shall be deemed to prohibit:
(A) The publication or circulation by a Multiple Listing Service of
information, in connection with bona fide efforts to sell real estate,
concerning the commission which a broker has agreed upon with his
client, or the percentage division thereof which a listing broker has
agreed to pay a selling broker, arrived at in accordance with this
Final Judgment; or
(B) The adoption and enforcement by a Multiple Listing Service of
rules requiring (i) that neither the commission nor the percentage
division thereof, arrived at in accordance with this Final Judgment and
specified for a listing not to exceed a reasonable period, may be
altered without the consent of both the listing and the selling broker,
and (ii) that the recipient of any such commission promptly pay over to
the listing or selling broker, as appropriate, the percentage division
of the commission as specified or as otherwise agreed upon by the
listing and selling broker; or
(C) The publication of advertisements that include the commission
rates of individual brokers, provided that the Defendants shall not
adopt or suggest rates as proscribed in Section IV(C).
X
For the purpose of determining or securing compliance with this
Final Judgment:
Duly authorized representatives of the Department of Justice shall,
upon written request of the Attorney General or the Assistant Attorney
General in charge of the Antitrust division, and on reasonable notice
to a defendant made to its principal office, be permitted, subject to
any legally recognized privilege, and subject to the presence of
counsel if so desired:
(1) Access during its office hours to all books, ledgers, accounts,
correspondence, memoranda, and other records and documents in the
possession of or under the control of such defendant relating to any
matters contained in this Final Judgment; and
(2) Subject to the reasonable convenience of such defendant, and
without restraint or interference from it to interview officers or
employees of such defendant regarding any such matters.
[[Page 39796]]
Upon such written request, each defendant shall submit such reports
in writing, under oath if so requested, to the Department of Justice
with respect to any of the matters contained in this Final Judgment as
may from time to time be requested.
No information obtained by the means provided in this Section X
shall be divulged by any representative of the Department of Justice to
any person, other than a duly authorized representative of the
Executive Branch of plaintiff, except in the course of legal
proceedings to which the United States of America is a party for the
purpose of securing compliance with this Final Judgment or as otherwise
required by law.
XI
Jurisdiction is retained by this curt for the purpose of enabling
any of the parties to this Final Judgment to apply to this court at any
time for such further orders and directions as may be necessary or
appropriate for the construction or carrying out of this Final
Judgment, for the modification of any of the provisions hereof, for the
enforcement of compliance therewith; and for the punishment of
violations thereof.
Dated:
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United States District Judge
[FR Doc. 05-13532 Filed 7-8-05; 8:45 am]
BILLING CODE 4410-11-M
