United States v. Kentucky Real Estate Commission; Proposed Amendment Final Judgment and Competitive Impact Statement, 45424-45432 [05-15489]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 70, Number 150 (Friday, August 5, 2005)]
[Notices]
[Pages 45424-45432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15489]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Kentucky Real Estate Commission; Proposed 
Amendment Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b) through (h), that a proposed Amended 
Final Judgment, Stipulation and Order, and Competitive Impact Statement 
have been filed with the United States District Court for the Western 
District of Kentucky in United States of America v. Kentucky Real 
Estate Commission, Civil Action No. 3:05-cv-188-S.
    On March 31, 2005, the United States filed a Complaint alleging 
that the Commission and others violated section 1 of the Sherman Act, 
15 U.S.C 1, when they entered into and engaged in a combination and 
conspiracy to restrict competition among real estate brokers through 
the Commission's promulgation and enforcement of regulations banning 
rebates and inducements. The proposed Amended Final Judgment, filed on 
July 15, 2005: (i) Enjoins the Commission from enforcing any 
regulations that prohibit licensed real estate brokers in Kentucky from 
offering non-misleading rebates or inducements; (ii) requires the 
Commission to notify brokers that they can offer rebates and 
inducements to attract clients; (iii) permits any broker, whose license 
is currently suspended or revoked on account of offering a rebate or 
inducement, to request to have his or her license reinstated; (iv) 
requires the Commission to cease any current investigations or 
disciplinary actions relating to the offering of rebates and 
inducements; and (v) provides that any disciplinary action against 
rebates and inducements is null and void.
    Copies of the Complaint, Stipulation and Order, proposed Amended 
Final Judgment, and Competitive Impact Statement are available for 
inspection at the Department of Justice, Antitrust Division, Room 200, 
325 Seventh Street, NW., Washington, DC 20530, on the Department of 
Justice's Web site at https://www.usdoj.gov/atr/, and at the Office of 
the Clerk of the United States District Court for the Western District 
of Kentucky in Louisville, Kentucky.
    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 directed 
to John Read, Chief, Litigation III Section, Antitrust Division, 
Department of Justice, 325 7th Street, NW., Suite 300, Washington, DC 
20530 (telephone: (202) 616-5935).

Dorothy B. Fountain,
Deputy Director of Operations.

Competitive Impact Statement

    The United States, pursuant to section 2(b) of the Antitrust 
Procedures and Penalties Act (``APPA''), 15 U.S.C. 16(b), files this 
Competitive Impact Statement relating to the Proposed Amended Final 
Judgment submitted for entry in this civil antitrust proceeding.
    On March 31, 2005, the United States filed a civil antitrust 
Complaint pursuant to section 4 of the Sherman Act, as amended, 15 
U.S.C. 4, against Defendant, the Kentucky Real Estate Commission (the 
``Commission''). The Complaint alleges that the Commission and others 
entered into and engaged in a combination and conspiracy to restrict 
competition among real estate brokers through the Commission's 
promulgation and enforcement of regulations banning rebates and 
inducements (the ``Rebate

[[Page 45425]]

Ban''). The Complaint further alleges that this combination and 
conspiracy is an unreasonable restraint of interstate trade that is 
illegal under section 1 of the Sherman Act, 15 U.S.C. 1. The Complaint 
seeks an order to terminate the Defendant's Rebate Ban, to enjoin 
future conduct in furtherance of any such Rebate Ban, and to obtain 
such other equitable relief necessary to restore competition for the 
benefit of consumers in Kentucky.
    The United States filed on July 13, 2005, a Stipulation and 
Proposed Order, and on July 15, 2005, a Proposed Amended Final 
Judgment, which constitute the parties' settlement.
    This proposed Amended Final Judgment, as explained more fully 
below, (i) enjoins the Commission from enforcing any regulations that 
prohibit licensed real estate brokers in Kentucky from offering non-
misleading rebates or inducements; (ii) requires the Commission to 
notify brokers that they can offer rebates and inducements to attract 
clients; (iii) permits any broker, whose license is currently suspended 
or revoked on account of offering a rebate or inducement, to request to 
have his or her license reinstated; (iv) requires the Commission to 
cease any current investigations or disciplinary actions relating to 
the offering of rebates and inducements; and (v) provides that any 
disciplinary action against rebates and inducements are null and void.
    The Stipulation and Proposed Order require the Commission to take 
actions required under the Proposed Amended Final Judgment. The United 
States and the Commission have also stipulated that the Proposed 
Amended Final Judgment may be entered after compliance with the APPA, 
unless the United States withdraws its consent. Entry of the Proposed 
Amended Final Judgment would terminate this action, except that this 
Court would retain jurisdiction to construe, modify, and enforce the 
Proposed Amended Final Judgment and to punish violations thereof.

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

A. Defendant

    In creating the Commission, the Commonwealth of Kentucky empowered 
it to regulate the licensing and education of brokers and to safeguard 
and protect the public interest. The Commission consists of five 
Commissioners, four of which, by statute, must be active real estate 
brokers before and during their term on the Commission. When there is a 
broker-Commissioner vacancy, the Kentucky Association of Realtors, a 
private industry trade group for brokers, creates a list of not less 
than three nominees from which the Governor of Kentucky must appoint 
the new Commissioner. The Governor may reappoint a particular broker-
Commissioner only if the trade association chooses to resubmit the 
broker-Commissioner's name on its new list of nominees.
    The Commission is the sole licensing authority for real estate 
brokers in Kentucky. It is unlawful for any person to provide, or to 
offer to provide, real estate brokerage services in Kentucky unless he 
or she holds a current license issued by the Commission. The Commission 
also promulgates and enforces regulations, including the regulations 
that prohibit rebates and inducements to customers.

B. The Benefits of Rebates and Inducements

    The predominant form of payment for real estate brokerage services 
remains the ``commission,'' a percentage of the price paid for the 
property. Brokers may compete by offering their services at different 
commission levels. To compete against one another, brokers in other 
States also frequently offer customers rebates and inducements. 
Examples of rebates and inducements include cash (whereby the buyer's 
broker offers some percentage or amount of his or her commission to the 
buyer), free products and services (such as televisions or home 
inspections), discounts or vouchers for other products and services 
(such as home moving services or home improvement stores), and 
donations to charities on the customer's behalf.
    Rebates and inducements benefit home buyers and sellers. Under the 
traditional structure of a real estate contract, the seller and 
seller's broker determine the amount of the commission, and how it is 
allocated between the seller's and buyer's broker. If the seller's 
broker also finds the buyer, then that broker keeps the full 
commission. If, instead, different brokers represent the seller and 
buyer, the seller's broker pays the commission of the buyer's broker, 
and the size of that payment is not controlled by the buyer. Being able 
to offer rebates and inducements allows brokers to compete for the 
buyer's business by reducing the compensation they receive for 
representing a buyer. For example, the broker can offer prospective 
home buyers $1,000 (payable from the broker's commission) at the time 
of closing, if the buyers agree to have that broker as their agent.\1\
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    \1\ Although home sellers in Kentucky are permitted to offer 
inducements directly to the buyer, this does not mitigate the 
anticompetitive effects of the Commission's Rebate Ban. Such a 
discount is attached to a particular house (and not the broker's 
services). Thus, it is not a factor when a buyer chooses the broker 
who should represent the buyer in finding and purchasing a home. 
Brokers in Kentucky have been prohibited from competing to become 
the buyer's agent by lowering their prices through rebates and 
inducements.
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    Rebates also benefit sellers. Rebates, for example, could be 
selectively offered to more price-sensitive home sellers. Thus, a 
broker could keep his or her commission fixed (for example at six 
percent), but discount to certain sellers through a rebate or 
inducement.
    Buyers and sellers may also benefit from inducements, such as free 
or reduced-price non-real estate brokerage services, for which a broker 
may be able to contract at lower prices than would normally be 
available to buyers and sellers.
    More generally, a more competitive and more efficiently-operating 
marketplace will tend to generate greater benefits for both home 
sellers and home buyers. All buyers and sellers benefit if the process 
of selling homes is less expensive. Consequently, allowing non-
misleading rebates and inducements is procompetitive and represents an 
important component of price competition. Such price competition is 
permitted in most States. National discount brokers, for example, 
advertise rebates and inducements in the many States where they are 
permitted. Customers in these States then ask for rebates and 
inducements.

C. The Rebate Ban

    The Kentucky Legislature enacted statutes that authorize the 
Commission to regulate the licensing and education of brokers. 
Kentucky, however, expressly forbids the Commission from promulgating 
any regulation that fixes prices, establishes fees, or sets the rate at 
which brokers are compensated. See Ky. Rev. Stat. Sec.  324.282. This 
statute confirms that Kentucky intended that consumers of real estate 
brokerage services enjoy the benefits of price competition among 
brokers. Despite this statute, in 1991, the Commission promulgated 
administrative regulations that banned rebates and inducements. See 201 
Ky. Admin. Reg. 11:011, Section 1(5); 201 Ky. Admin. Reg. 11:121, 
Section 1(2). Specifically, the Commission's regulations forbid a 
broker ``[t]o offer, either through advertising, direct contact or by 
others, to the general public, any prize, money, free gift, rebate, or 
any other thing of

[[Page 45426]]

value as an inducement.'' 201 Ky. Admin. Reg. 11:121, Section 1(2).
    The Commission warned brokers that they could not compete by 
offering rebates or inducements. Nor could brokers, prior to closing, 
even compete by taking clients our to dinner, donating money to a 
charity of the customer's choice, or offering a free photo. The 
Commission announced that, even after the closing of a real estate 
transaction, brokers could not give their clients anything more than a 
gift worth up to $100 in value.
    To prevent brokers from offering rebates or other inducements, the 
Commission took several steps, including:
     Teaching brokers in licensing courses to refrain from 
offering rebates and inducements;
     Asking brokers to inform the Commission when one or more 
competing brokers offer rebates or other inducements;
     Bringing disciplinary actions against brokers for offering 
rebates or other inducements; and
     Sanctioning brokers for offering rebates or other 
inducements.

D. The Agreement To Ban Rebates and Inducements Is an Unreasonable 
Restraint of Trade That Is Per Se Illegal

    As alleged in the Complaint, the Commission's promulgation and 
enforcement of the Rebate Ban is the product of an agreement, 
combination, or conspiracy among Broker-Commissioners and others that 
has restricted the ability of brokers to compete on the basis of price. 
``In construing and applying the Sherman Act's ban against contracts, 
conspiracies, and combinations in restraint of trade, the [Supreme 
Court] has held that certain agreements or practices are so `plainly 
anticompetitive' and so often `lack * * * any redeeming virtue,' that 
they are conclusively presumed illegal without further examination 
under the rule of reason.'' Catalano v. Target Sales, Inc., 446 U.S. 
643, 646 (1980) (conspiracy to eliminate short-term credit to retailers 
per se illegal) (citations omitted); see also United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 221 (1940) (any combination which tampers 
with price structures is unlawful); TFWS, Inc. v. Schaefer, 242 F.3d 
198, 210 (4th Cir. 2001) (volume discount ban per se illegal). The 
agreement among the Broker-Commissioners and others to ban rebates and 
inducements through the promulgation and enforcement of the Rebate Ban 
is a per se violation of Section One of the Sherman Act. Given its 
pernicious effect on competition and lack of any redeeming virtue, the 
agreement is conclusively presumed to be unreasonable without the need 
for an elaborate inquiry into the precise harm that is caused or the 
potential business justification for its use. Northern Pacific Ry. Co. 
v. United States, 356 U.S. 1, 5 (1958).

II. Explanation of the Proposed Amended Final Judgment

    The effect of the Proposed Amended Final Judgment would be to 
restore competition that the agreement among the Broker-Commissioners 
and others had eliminated, and to prevent the broker-controlled 
Commission from engaging in similar conduct in the future. The Proposed 
Amended Final Judgment would enjoin the Commission from enforcing its 
Rebate Ban. The Commission must also take certain measures for those 
brokers, who were, or are being, disciplined for offering rebates and 
inducements. First, it must discontinue any investigations or 
disciplinary actions to the extent they relate to the offering of any 
rebates or inducements. Second, it must permit any broker, who 
currently is on probation or whose license is currently suspended or 
revoked for having offered a rebate or inducement, to have his or her 
license reinstated to the extent that the broker otherwise meets the 
contemporary licensing requirements under the Kentucky Revised 
Statutes. Third, the Commission must treat any past disciplinary 
actions for offering rebates or inducements as null and void.

III. 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 district court to recover 
three times the damages the person has suffered, as well as the costs 
of bringing a lawsuit and reasonable attorneys' fees. Entry of the 
Proposed Amended 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 
Amended Final Judgment has no effect at prima facie evidence in any 
subsequent private lawsuit that may be brought against the Defendant.

IV. Procedures Available for Modification of the Proposed Amended Final 
Judgment

    The parties have stipulated that the Proposed Amended Final 
Judgment may be entered by this Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry of the decree upon 
this Court's determination that the Proposed Amended Final Judgment is 
in the public interest.
    The APPA provides a period of at least 60 days preceding the 
effective date of the Proposed Amended Final Judgment within which any 
person may submit to the United States written comments regarding the 
Proposed Amended Final Judgment. Any person who wishes to comments 
should do so within 60 days of the date of publication of this 
Competitive Impact Statement in the Federal Register. The United States 
will evaluate and respond to the comments. All comments will be given 
due consideration by the Department of Justice, which remains free to 
withdraw its consent to the Proposed Amended Final Judgment at any time 
prior to entry. The comments are the response of the United States will 
be filed with this Court and be published in the Federal Register 
(unless upon application by the United States, the Court, for good 
cause, authorizes an alternative method of public dissemination). 
Written comments should be submitted to: John Read, Chief, Litigation 
III Section, Antitrust Division, United States Department of Justice, 
325 Seventh St, NW., Suite 300, Washington, DC 20530.
    The Proposed Amended Final Judgment provides that this Court 
retains jurisdiction over this action, and the parties may apply to 
this Court for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Amended Final Judgment.

V. Alternatives to the Proposed Amended Final Judgment

    The United States considered, as an alternative to the Proposed 
Amended Final Judgment, a full trial on the merits against the 
Defendant. Given the inherent delays of a full trial and the appeals 
process, the United States is satisfied that the relief contained in 
the Proposed Amended Final Judgment, will quickly establish, preserve, 
and ensure competition for real estate brokerage services in Kentucky.

VI. Standard of Review Under the APPA for Proposed Amended Final 
Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a 60-day comment 
period, after which the court shall determine whether entry of the 
Proposed Amended Final Judgment ``is in the public interest.'' 15

[[Page 45427]]

U.S.C. 16(e)(1). In making that determination, the court shall 
consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or 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). As the United States Court of Appeals 
for the District of Columbia Circuit has held, the APPA permits a court 
to consider, among other things, the relationship between the remedy 
secured and the specific allegations set forth in the government's 
complaint, whether the decree is sufficiently clear, whether 
enforcement mechanisms are sufficient, and whether the decree may 
positively harm third parties. See United States v. Microsoft Corp., 56 
F.3d 1448, 1458-62 (D.C. Cir. 1995).
    ``Nothing 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). Thus, in conducting this 
inquiry, ``[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.'' \2\ Rather:
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    \2\ 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). 
See United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass 
1975) (recognizing it was not the court's duty to settle; rather, 
the court must only answer ``whether the settlement achieved [was] 
within the reaches of the public interest''). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed by the Department of 
Justice pursuant to the APPA. Although the APPA authorizes the use 
of additional procedures, 15 U.S.C. 16(f), those procedures are 
discretionary. A court need not invoke any of them unless it 
believes that the comments have raised significant issues and that 
further proceedings would aid the court in resolving those issues. 
See H.F. Rep. No. 93-1463, 93rd Cong., 2d Sess. 8-9 (1974), 
reprinted in 1974 U.S.C.C.A.N. 6535, 6538-39.

[a]bsent 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 
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circumstances.\3\

    \3\ United States v. Mid-America Dairymen, Inc., Civ. Action No. 
73 cv 681-W-1, 1977-1 Trade Cas. (CCH) ] 61,508, at 71,980 (W.D. Mo. 
May 17, 1977).
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    Accordingly, 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.'' \4\ Courts have held that:
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    \4\ United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 
1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 
(9th Cir. 1981)); see also Microsoft, 56 F.3d at 1458.

[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 
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effectiveness of antitrust enforcement by consent decree.\5\

    \5\ Bechtel, 648 F.2d at 666 (emphasis added) (citations 
omitted); 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''); Gillette, 406 F. Supp. at 716 
(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' ''
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    The Proposed Amended Final Judgment, therefore, should not be 
reviewed under a standard of whether it is certain to eliminate every 
anticompetitive effect of a particular practice or whether it mandates 
certainty of free competition in the future. Court approval of a final 
judgment requires a standard required for a finding of liability. 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' '' \6\
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    \6\ United States v. Microsoft Corp., 231 F. Supp. 2d 144, 153 
(D.D.C. 2002) (quoting United States v. American Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted), 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) (standard is not whether decree is one that will best 
serve society, but whether it is within the reaches of the public 
interest).
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    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; the APPA 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. Since 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 might have but did 
not pursue. Id. at 1459-60.

VII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the Proposed Amended Final Judgment.

    Dated: July 26, 2005.

    Respectfully submitted.

Andrew C. Finch,
Counsel to the Assistant Attorney General.

Maurice E. Stucke,
Owen M. Kendler,
Mary Beth McGee and
Mark A. Merva.
Attorneys for the United States; U.S. Department of Justice, 
Antirust Division, Litigation III Section, 325 7th Street, NW., 
Suite 300, Washington, DC 20530. Telephone: (202) 305-1489. 
Facsimile: (202) 514-7308. E-mail: Maurice.Stucke@usdoj.gov.

Certificate of Service

    I hereby certify that on July 26, 2005, I electronically filed the 
foregoing with the clerk of the court by using the CM/ECF system, which 
will send a notice of electronic filing to the following: John S. Reed, 
David J. Hale, Reed Weitkamp Schell & Vice PLLC; 500 West Jefferson 
Street, Suit 2400, Louiseville, KY 40202-2812, Counsel for Defendant.

Owen M. Kendler,
U.S. Department of Justice, Antitrust Division, Litigation III 
Section, 325 7th Street, NW., Suite 300, Washington, DC 20530. (202) 
305-8376 (telephone). (202) 514-7308 (facsimile). 
Owen.Kendler@usdoj.gov.

Amended Final Judgment

    Whereas, Plaintiff, United States of America, filed its Complaint 
on March 31, 2005, and Plaintiff and Defendant, by their respective 
attorneys, have consented to the entry of this Final Judgment, as 
amended on July 15, 2005 (the ``Amended final Judgment''), without 
trial or adjudication of any issue of fact or law, and this Amended 
Final Judgment shall not be evidence against or an admission by any 
party regarding any issue of fact or law;
    And whereas, Defendant agrees to be bound by the provisions of this

[[Page 45428]]

Amended Final Judgment pending its approval by the Court.
    And whereas, Plaintiff required Defendant to take certain actions 
for the purpose of remedying the loss of competition alleged in the 
Complaint;
    And whereas, Defendant has represented to the United States that 
the actions required below can and will be made and that Defendant will 
later raise no claim of hardship or difficulty as grounds for asking 
the Court to modify any of the provisions contained below;
    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 Defendant under section 1 of the Sherman 
Act, as amended, 15 U.S.C. 1.

II. Definitions

    As used herein, the term:
    A. ``Defendant'' means the Kentucky Real Estate Commission, its 
successors and assigns, and its commissioners, directors, officers, 
managers, committees, agents, and employees.
    B. ``Disciplinary Action'' means:
    1. The Defendant's revocation or suspension of, or refusal to 
grant, a license to provide Real Estate Brokerage Services in Kentucky;
    2. The Defendant's imposition of a reprimand, fine, probation, or 
other penalty or condition; or
    3. The initiation, by the Defendant or at its request, of an 
administrative, criminal, or civil proceeding.
    C. ``Enforcing'' a Regulation means any manner--formal or 
informal--in which Defendant requires compliance with any Regulation, 
including, but not limited to, investigations or hearings of purported 
violations of the Regulation, and any Disciplinary Actions for any 
violation of the Regulation.
    D. ``Inducement'' means money, a free gift, a prize, or any other 
thing of value that a Licensee would offer a potential client or 
customer.
    E. ``Licensee'' means any person who is licensed by Defendant under 
chapter 324 of the Kentucky Revised Statutes or any future 
recodification thereof and legally can perform acts of real estate 
brokerage, and any person who legally can perform acts of real estate 
brokerage while acting under the supervision of a licensed broker.
    F. ``Licensee Price'' means any commission, fee, or charge that the 
Licensee offers to charge, or does charge, for its Real Estate 
Brokerage Services, and includes any discounts.
    G. ``Price Advertising'' means advertising information about the 
Licensee Price or any discount, Rebate, or Inducement.
    H. ``Real Estate'' means real property, and includes timeshares, 
options, leaseholds, and other interests less than leaseholds.
    I. ``Real Estate Brokerage Services'' means any service that only a 
Licensee is authorized to provide pursuant to applicable Kentucky 
statutes and regulations.
    J. ``Rebate'' means a payment of monies or anything of value by, or 
on behalf of, a Licensee to a client or customer (or to a third party 
authorized by the client or customer to receive the payment) that is in 
connection with the provision of Real Estate Brokerage Services. 
Examples of Rebates directed to third parties include, but are not 
limited to, payments to charities, home inspectors, and moving 
services. A Rebate does not include compensation paid for Real Estate 
Brokerage Services to any third party who is not licensed in Kentucky 
to perform such services; this Amended Final Judgment does not 
authorize a client or customer to permit or direct such payments to an 
unlicensed third party for performing such services.
    K. ``Rebate Ban'' means any Regulation, including, but not limited 
to, the Defendant's Regulation at 201 Ky. Admin. Reg. 11:011, Section 
1(5) and 201 Ky. Admin. Reg. 11:121, Section 1(2), that might prevent 
Licensees from offering or using any Licensee Price, discounts, 
Rebates, or Inducements, or using any Price Advertising to notify 
consumers of any Licensee Price, discounts, Rebates, or Inducements.
    L. ``Regulation'' means any Kentucky administrative regulation, and 
includes any formal or informal policy, restriction, rule or legal 
interpretation adopted or applied by Defendant.

III. Applicability

    This Amended Final Judgment applies to the Kentucky Real Estate 
Commission, as defined above, and all other persons in active concert 
or participation with it who receive actual notice of this Amended 
Final Judgment by personal service or otherwise.

IV. Prohibited Conduct

    Defendant is enjoined from, directly or indirectly, or through any 
Regulation, Disciplinary Action or other conduct:
    A. Entering into, continuing, maintaining, or renewing any 
agreement, contract, or Regulation to fix, establish, raise, stabilize, 
suppress, eliminate, regulate, or maintain the level of commissions, 
discounts, Rebates, Inducements, or the Licensee Price;
    B. Prohibiting, restricting, impeding, or discouraging any Licensee 
from Price Advertising or from offering any Licensee Price, discounts, 
Rebates, or Inducements;
    C. Investigating any Licensee for Price Advertising or for offering 
any Licensee Price, discounts, Rebates, or Inducements;
    D. Threatening or taking any Disciplinary Action against any 
Licensee for Price Advertising or for offering any Licensee Price, 
discounts, Rebates, or Inducements;
    E. Enforcing the Rebate Ban; or
    F. Inducing, urging, encouraging, or assisting any person or 
organization to take any of the actions prohibited by this Section of 
the Amended Final Judgment.

V. Other Actions

    A. Until the Rebate Ban is repealed and eliminated, Defendant shall 
treat the Rebate Ban as preempted by the federal antitrust laws and 
null and void.
    B. Defendant shall address the substance of this Amended Final 
Judgment--including that Licensees are free to compete by offering any 
Licensee Price, discounts, Rebates, or Inducements--in the training or 
educational materials that Defendant prepares, reviews, or approves for 
the following courses (including any course in the future, which may 
have a different name, but covers substantially the same topics): the 
Kentucky Core course, the Brokerage Management course, and a pre-
licensing course.
    C. All Disciplinary Actions--to the extent they related to the 
offering of any discounts, Rebates, or Inducements--shall be null and 
void. Any records in the Defendant's possession, custody, or control 
relating to a Licensee subject to such Disciplinary Action shall 
reflect the same.

VI. Notifications

    A. Within thirty (30) days from July 13, 2005, Defendant shall 
notify in writing:
    1. Each Licensee who--as of July 13, 2005--is on probation or whose 
license is suspended or revoked for offering a discount, Rebate, or 
Inducement, that the license may be reinstated, at the Licensee's 
request, to the extent that the Licensee otherwise meets the 
contemporary licensing requirements under the Kentucky Revised 
Statutes.
    2. Each Licensee, who--as of July 13, 2005--is being investigated 
or subject to a Disciplinary Action for offering a

[[Page 45429]]

discount, Rebate, or Inducement, that such investigation or action--to 
the extent it relates to the offering of discounts, Rebates, or 
Inducements--has ceased with no further Disciplinary Action taken. Any 
records in the Defendant's possession, custody, or control relating to 
the affected Licensee shall reflect the same.
    B. Within one-hundred-and-twenty (120) days from July 13, 2005, 
Defendant shall display prominently on the first page of its newsletter 
the following language:

On July 13, 2005, under the terms of a settlement with the U.S. 
Department of Justice Antitrust Division, the Kentucky Real Estate 
Commission agreed to stop enforcing regulations that restricted the 
use and advertisement of rebates, inducements or discounts by KREC 
licensees. The proposed Amended Final Judgment effecting the 
settlement and a letter of explanation were mailed to each KREC 
licensee. Any licensee who did not receive this mailing may request 
another copy. Links to the proposed Amended Final Judgment and the 
explanatory letter can also be found on the ``Real Estate Licensing 
Laws in Kentucky'' and ``Legal Information'' pages of KREC's Web 
site, https://www.krec.ky.gov/.

    C. Within thirty (30) days from July 13, 2005, Defendant shall mail 
or deliver a copy of the proposed Amended Final Judgment, under cover 
of the letter attached hereto as ``Appendix A,'' to each Licensee.
    D. For a period of three (3) years from July 13, 2005, Defendant 
shall mail or deliver a copy of the proposed Amended Final Judgment, 
under cover of the letter attached hereto as ``Appendix A,'' to each 
new Licensee of Defendant within forty-five (45) days of each such 
person's acceptance by Defendant as a Licensee.
    E. Within thirty (30) days from July 13, 2005, and for a period of 
sixty (60) days thereafter,
    1. Defendant shall prominently publish the proposed Amended Final 
Judgment and the letter attached hereto as ``Appendix A'' on the home 
page of its Web site, https://www.krec.ky.gov/.
    2. After such sixty (60) day period, and for a following period of 
three (3) years, Defendant shall maintain a link from its ``Real Estate 
Licensing Laws in Kentucky'' and ``Legal Information'' web pages, or 
their equivalent, to the Amended Final Judgment and the letter attached 
hereto as ``Appendix A'' in a manner that provides reasonable notice to 
interested parties.
    F. Defendant shall notify Plaintiff at least thirty (30) days prior 
to any proposed change to its Regulations that may affect Defendant's 
compliance obligations arising out of the Amended Final Judgment.
    G. As soon as Defendant is aware of any proposed change to any 
statute or executive order that may affect its compliance obligations 
arising out of the Amended Final Judgment, Defendant shall immediately 
notify Plaintiff.

VII. Limiting Conditions

    A. With the exception of such actions that are prohibited elsewhere 
in this Amended Final Judgment, nothing shall alter the Defendant's 
general authority to adopt and enforce reasonable Regulations, or to 
take Disciplinary or other action designed to prevent violations of the 
Kentucky Revised Statutes. Such authority includes the right to 
prohibit:
    1. Advertising that is fraudulent, false, deceptive, or misleading 
within the meaning of Kentucky Revised Statutes, Chapter 324, Section 
160(4)(1);
    2. Any promise, assertion, representation, or statement of fact 
that is false, deceptive, or misleading; or constitutes under Kentucky 
law an otherwise illegal lottery scheme, whereby there is the payment 
of valuable consideration for the chance to receive a prize; or
    3. For the protection of the client or customer, failure by 
Licensees to disclose in writing to their clients or customers the 
terms of any offered Rebates or Inducements.

VIII. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Amended Final Judgment, or of determining whether the Amended Final 
Judgment should be modified or vacated, and subject to any legally 
recognized privilege, from time to time duly authorized representatives 
of the United States 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 Defendant, be permitted:
    1. Access during Defendant's office hours to inspect and copy, or 
at Plaintiff's option, to require Defendant to provide copies of, all 
books, ledgers, accounts, records and documents in the Defendant's 
possession, custody, or control, relating to any matters contained in 
this Amended Final Judgment; and
    2. To interview, either informally or on the record, Defendant's 
commissioners, 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 Defendant.
    B. Upon the written request of a duly authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division, 
Defendant shall submit written reports or interrogatory responses, 
under oath if requested, relating to any of the matters contained in 
this Amended 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 Amended Final Judgment, or as 
otherwise required by law.

IX. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Amended 
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 Amended Final Judgment, to modify any of its provisions, 
to extend the duration of the Amended Final Judgment, to enforce 
compliance, and to punish violations of its provisions.

X. Expiration of Final Judgment

    This Amended Final Judgment will expire ten (10) years from the 
date of its entry, but only if the Rebate Ban has been repealed and 
eliminated.

XI. Notice

    For purposes of this Amended Final Judgment, any notice or other 
communication shall be given to the person at the address set forth 
below (or such other addresses as the recipient may specify in 
writing):
    For the United States: Chief, Litigation III Section, U.S. 
Department of Justice, Antitrust Division, 325 Seventh Street, NW., 
Suite 300, Washington, DC 20530.
    For the Defendant: Lee B. Harris, General Counsel, Kentucky Real 
Estate Commission, 10200 Linn Station Road, Suite 201, Louisville, KY 
40223; With a copy to: John S. Reed, David J. Hale, Reed Weitkamp 
Schell & Vice PLLC, 500 West Jefferson Street, Suite 2400, Louisville, 
KY 40202-2812.

XII. Public Interest Determination

    Entry of this Amended Final Judgment is in the public interest.

Date:------------------------------------------------------------------


[[Page 45430]]

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

-----------------------------------------------------------------------
United States District Judge.

Appendix A

(Letterhead of the Kentucky Real Estate Commission)

    Dear Licensee: The Kentucky Real Estate Commission, under the 
terms of a settlement with the U.S. Department of Justice, has 
agreed to stop enforcing regulations that restricted the use and 
advertisement of rebates, inducements, or discounts by you or any 
other licensee. A copy of the proposed Amended Final Judgment is 
enclosed.
    In order that you may readily understand the terms of the 
proposed Amended Final Judgment, we describe below its essential 
provisions, although you must realize that the proposed Amended 
Final Judgment itself is controlling, rather than the following 
explanation of its provisions:
    (1) The Commission must allow you or any other licensee to offer 
customers rebates, discounts, or other inducements. The Commission 
must also allow you or any other licensee to use truthful and non-
misleading advertisements to notify consumers of rebates, 
inducements, or other discounts, which you may choose to offer.
    (2) The Commission will no longer enforce any ban against 
rebates, discounts, or other inducements. Specifically, the 
Commission will not enforce the regulation at 201 Ky. Admin. Reg. 
11:011, Section 1(5) and 201 Ky. Admin. Reg. 11:121, Section 1(2), 
that, in the absence of the proposed Amended Final Judgment, had 
prevented you from offering rebates, discounts, or other 
inducements.
    (3) You and any other licensee are now free to compete by 
offering consumers rebates, discounts, and other inducements.
    (4) If you were disciplined for offering a rebate, discount, or 
other inducement, then that disciplinary action shall be deemed null 
and void, and the Commission will note that in its records.
    Please note that the proposed Amended Final Judgment does not 
alter the Commission's authority to enforce its regulations 
generally and to prohibit advertising or other conduct that is 
fraudulent, false, deceptive, or misleading. Moreover, licensees 
still cannot offer illegal lottery schemes. Also enclosed are the 
relevant portions of a new Kentucky Administrative Regulation filed 
July --, 2005. This regulation requires licensees to disclose in 
writing to their clients and customers the terms of all rebates and 
inducements.
    Sincerely yours,

[appropriate Commissioner or officer]
(Enclosures.)


Complaint

    The United States of America, by its attorneys acting under the 
direction of the Attorney General of the United States, brings this 
antitrust action against the Kentucky Real Estate Commission (``the 
Commission'') for violation of Section 1 of the Sherman Act, 15 U.S.C. 
1. The Commission promulgated and enforces administrative regulations 
that ban real estate brokers and sales associates in Kentucky 
(collectively ``Brokers'') from competing with each other by offering 
consumers cash rebates or other inducements (the ``Rebate Ban''). The 
Commission's promulgation, adoption, maintenance, and enforcement of 
these regulations is a result of agreements, combinations, or 
conspiracies among the Commissioners and others that unreasonably 
restrain competition. For example, the Rebate Ban prevents buyer 
Brokers from competing on price by offering cash rebates when they 
enter into agreements with clients.

Nature of the Action

    1. By this action, the United States challenges regulations 
promulgated by the Commission that prohibit Brokers from competing with 
each other by offering rebates or inducements to consumers of real 
estate brokerage services.
    2. The Commonwealth of Kentucky (``Kentucky'') created the 
commission and empowered it to regulate the licensing and education of 
Brokers and to safeguard and protect the public interest.
    3. In creating the Commission, the Kentucky legislature sought to 
preserve price competition in real estate brokerage services for the 
good of its citizens. Toward that end, Kentucky specifically prohibits 
the Commission, which consists almost entirely of practicing Brokers, 
from ``promulgat[ing] any administrative regulation which in any way 
fixes prices, establishes fees, or sets the rate at which [Brokers] are 
compensated.'' Ky. Rev. Stat. Sec.  324.282.
    4. In conflict with Kentucky's policy and statutory prohibition, 
the commissioners, through their promulgation and enforcement of the 
Rebate Ban (see Ky. Admin. Reg. 11:011, Section 1(5); 201 Ky. Admin. 
Reg. 11:121, Section 1(2)), have enabled Brokers to raise, fix, peg, or 
stabilize the prices and rates at which Brokers are compensated. The 
Rebate Ban is the result of agreements, combinations, or conspiracies 
among its Commissioners and others, and it unreasonably restrains 
competition to the detriment of consumers.
    5. The Rebate Ban deprives consumers of the benefits of price 
competition among Brokers in the provision of real estate brokerage 
services in Kentucky. The Rebate Ban makes it more difficult for 
consumers of real estate brokerage services to obtain lower prices for 
these services.
    6. Brokers have substantially resisted attempts to eliminate the 
Rebate Ban. In a Commission survey, many Brokers conceded that 
repealing or modifying the Rebate Ban would generate a bidding war and 
lead to lower prices for consumers:
    a. ``If we give rebates and inducements, it would get out of 
control and all clients would be wanting something. The present law 
keeps it under control.''
    b. ``This would turn into a bidding war, lessen our profits and 
cheapen our `so-called' profession.''
    c. ``I am for the law as it stands now. If inducements were 
allowed, they could lead to competitive behavior, which would make us 
look unprofessional in the eyes of the public.''
    d. ``I think this would just take money right out of our pocket.''
    e. ``We work to hard to give it away.''
    7. A few Brokers, who supported eliminating the Rebate Ban, cited 
some of the procompetitive benefits that repeal would foster:
    a. ``Rebates and inducements will increase competition and give 
consumers more choices in service.''
    b. ``Current law inhibits free trade. Most all other states allow 
inducement and rebates. Disclosure is all the police we need.''
    c. ``Commissions and sales awards are common in other industries. 
The bigger wrong being committed by agents and broker is the informal 
unspoken price fixing that occurs.''
    d. ``Buyer's brokers need to be able to offer a commission based on 
negotiation for buyer broker services. An agency contract should not be 
dependent on what the listing company offers. All commissions are 
negotiable. Also, let the public decide what offer they want to take on 
inducements.''
    8. The United States seeks to terminate this illegal restraint on 
competition and to obtain other equitable relief necessary to restore 
competition for the benefit of consumers of real estate brokerage 
services in Kentucky.

The Defendant

    9. The Commission is organized, exists, and transacts its business 
under and by virtue of the laws of Kentucky, with its principal place 
of business in Louisville, Kentucky.
    10. The Commission is the sole licensing authority for Brokers. It 
is unlawful for a person to provide, or to offer to provide, real 
estate brokerage services in Kentucky unless he or she

[[Page 45431]]

holds a current license issued by the Commission.
    11. The Commission consists of five Commissioners. By stature, four 
of the Commissioners must be active Brokers (``the Broker-
Commissioners'') before and during their term on the Commission. The 
fifth Commissioner, a citizen-at-large, may not be associated with or 
financially interested in the brokerage industry.
    12. When there is a Broker-Commissioner vacancy, the Kentucky 
Association of Realtors (``the Association''), a private industry trade 
group for Brokers, selects a list of not less than three nominees from 
which the Governor of Kentucky must appoint the new Commissioner. The 
Governor may reappoint a particular Broker-Commissioner only if the 
Association chooses to resubmit the Broker-Commissioner's name on its 
new list of nominees.
    13. The Commission promulgates and enforces regulations, including 
the regulations at issue in this Complaint.
    14. The Association actively participates in the Commission's 
rulemaking activities. Often, when the Commission has considered 
changing its regulations, it has formed a joint task force with the 
Association consisting of Commission and Association representatives. 
Such joint task forces have prepared draft regulatory text for the 
Commission's consideration,
    15. Kentucky law authorizes the Commission to take disciplinary 
action against any Broker who violates Kentucky real estate statutes or 
any of the Commission's regulations.
    16. Neither the legislative nor the executive branch of Kentucky, 
however, oversee the Commission's regulations or enforcement actions, 
including the Commission's enforcement actions regarding alleged 
violations of the Rebate Ban.
    17. Although the Commission has inhibited competition by banning 
rebates, neither the Commission nor the executive or legislative 
branches of Kentucky oversee the competitiveness or reasonableness of 
the pricing by Brokers for their services. Moreover, the Commission 
does not maintain or collect information concerning the level of real 
estate brokerage commissions.

Jurisdiction and Venue

    18. This complaint is filed under Section 4 of the Sherman Act, as 
amended 15 U.S.C. 4, in order to prevent and restrain the violation, as 
herein alleged, of Section 1 of the Sherman Act, 15 U.S.C. 1.
    19. This Court has subject matter jurisdiction under Section 4 of 
the Sherman Act, as amended 15 U.S.C. 4, and under 28 U.S.C. 1331, 
1337(a), and 1345.
    20. Venue is proper in this judicial district under 28 U.S.C. 
1391(b) because the Commission was created by Kentucky statute, it 
transacts business throughout Kentucky, and it maintains its principal 
place of business in Louisville, Kentucky.

Trade and Commerce

    21. The Commission's Rebate Ban and other activities substantially 
affect interstate commerce. Billions of dollars worth of real property 
is exchanged each year in Kentucky with the assistance of Brokers. 
Brokers assist in-state and out-of-state clients to buy, sell, lease, 
or manage real property. Interstate mortgage financing is affected by 
this exchange of property.

Background of the Offense

    22. The predominant form of payment for real estate brokerage 
services remains the ``commission,'' a percentage of the price paid for 
the property. In a typical transaction, the seller pays the commission 
to his or her real estate broker. In Kentucky, the seller and his or 
her Broker negotiate the Broker's commission, but the Broker is 
prohibited from including any rebate or price-cutting inducement in 
their agreement. If the seller's Broker also funds the buyer, then that 
Broker keeps the full commission. In most cases, however, a second 
Broker represents the buyer. If the transaction is completed, then the 
buyer's and seller's Brokers each receive a portion of the commission. 
The seller's Broker or the seller typically sets the commission level 
and its allocation between Brokers.
    23. As a result of the Rebate Ban, the buyer's Broker is prohibited 
from offering his or her buyer client any rebate or price-cutting 
inducement or discount off the commission set by the seller or the 
seller's Broker.

Relevant Markets

    24. The Commission's Rebate Ban has had, and will continue to have, 
anticompetitive effects in Kentucky's local real estate brokerage 
service markets.
    25. The relevant service markets are no broader than the provision 
of real estate brokerage services to sellers of real property and the 
provision of real estate brokerage services to buyers of real property.
    26. The real estate brokerage business is local in nature. Most 
sellers want to work with a Broker who is familiar with local market 
conditions and who maintains an office within a reasonable distance to 
the property. Likewise, most buyers want to purchase property in a 
particular city, community, or neighborhood, and they typically want a 
Broker who has knowledge of the area in which they have an interest.
    27. Except to the extent that competition has been restrained as 
alleged herein, and depending on their geographic location, Brokers 
compete with each other and with the Broker-Commissioners.
    28. The Rebate Ban applies to all Brokers and consequently affects 
competition for real estate brokerage services throughout Kentucky.

Conduct

    29. The Kentucky Legislature enacted statutes that authorize the 
Commission to regulate the licensing and education of Brokers. 
Kentucky, however, forbids the Commission from promulgating any 
regulation that in any way fixes prices, establishes fees, or sets the 
rate at which Brokers are compensated.
    30. In 1991, the Commission promulgated an administrative 
regulation that prohibits Brokers from offering to the general public 
any item or thing of value, including rebates that reduce fees, to 
induce clients to retain their services. (See 201 Ky. Admin. Reg. 
11:011, Section 1(5); 201 Ky. Admin. Reg. 11:121, Section 1(2).) 
Specifically, the Commission forbids a Broker ``[t]o offer, either 
through advertising, direct contact or by others, to the general 
public, any prize, money, free gift, rebate, or any other thing of 
value as an inducement.'' 201 Ky. Admin. Reg. 11:121, Section 1(2).
    31. In interpreting its regulations, the Commission has warned 
Brokers that they cannot compete by offering cash rebates, refunds, or 
a free home inspection. Nor can Brokers, prior to closing, compete by 
taking clients out to dinner, donating money to a charity of the 
customer's choice, or even offering a free photo with Santa Claus. The 
Commission has announced that, even after the closing of a real estate 
transaction, Brokers cannot give their clients anything more than a 
gift worth up to $100 in value.
    32. The Commission's promulgation and enforcement of the Rebate Ban 
is the product of agreements, combinations, or conspiracies among its 
Broker-Commissioners and others that has restricted the ability of all 
Brokers to compete on the basis of price.
    33. The Commission has engaged, and continues to engage, in acts in 
furtherance of these agreements, combinations, or conspiracies, 
including among other things:

[[Page 45432]]

    a. Prohibiting Brokers from offering consumers any type of rebate 
or inducement, including but not limited to, cash rebates, free 
products and services such as televisions or home inspections, 
discounts or vouchers for products and services such as home moving 
services or home improvement stores, and donations to charities on the 
customer's behalf, on the basis that such conduct violates the 
Commission's administrative regulations;
    b. Prohibiting rebates or other inducements in private contracts 
that involve Brokers; and
    c. Preventing Brokers from offering rebates or other inducements by 
among other things:
    i. Investigating alleged violations of the Rebate Ban;
    ii. Asking Brokers to inform the Commission when one or more 
competing Brokers offers rebates or other inducements;
    iii. Instructing Brokers to cease offering rebates or other 
inducements;
    iv. Threatening to bring disciplinary actions against Brokers 
unless they cease offering rebates or other inducements;
    v. Bringing disciplinary actions against Brokers for offering 
rebates or other inducements; and
    vi. Sanctioning Brokers the Commission has found to have offered 
rebates or other inducements by one or more of the following: 
suspending licenses, revoking licenses, imposing monetary fines, 
issuing reprimands, and requiring completion of additional academic 
credit hours.
    34. The Rebate Ban also enables sellers and/or seller Brokers to 
fix the commission at which the buyer's Broker is to be compensated in 
a particular real estate transaction, thereby insulating the Brokers 
from competing among themselves on the basis of price when they enter 
into agreements with buyers.
    35. As a result of the Rebate Ban, Brokers cannot--and thus need 
not--compete with one another by offering rebates or other valuable 
inducements.
    36. The Commission has worked closely with Brokers and Brokers' 
associations, including the Association, in its continued enforcement 
of the Rebate Ban. Among other things, the Commission has rejected 
proposals to eliminate the Rebate Ban as recently as 2004 after 
receiving substantial opposition from Brokers.

Anticompetitive Effects

    37. The Rebate Ban has injured, and continues to injure, buyers and 
sellers of real property throughout Kentucky. The Rebate Ban restricts 
competition and deprives the property-buying and property-selling 
public of a myriad of price and non-price discounts, including, but not 
limited to, cash rebates, vouchers or coupons, and discounted or free 
services related to buying and selling property such as home 
inspections, title services, or moving services. These rebates and 
inducements benefit consumers. Real estate brokers and sales associates 
operating in states without a similar ban offer rebates, inducements, 
and many of the discounts set forth above to buyers and sellers as they 
compete to offer their services to buyers and sellers. Such rebates, 
for example, may amount to several thousand dollars in a single 
transaction.
    38. The agreements, combinations, or conspiracies alleged herein 
have had, and will continue to have, anticompetitive effects, 
including:
    a. A suppression of price competition in the provision of real 
estate brokerage services;
    b. The limitation of products and services available to buyers and 
sellers of property; and
    c. The creation of barriers to entry into the provision of real 
estate brokerage services by companies that offer rebates, discounts, 
and reduced commissions as part of their business model.

Violation Alleged

    39. The allegations of paragraphs 1 through 38 of this Complaint 
are re-alleged and incorporated by reference herein with the same force 
and effect as though set forth in full.
    40. Defendant's promulgation, adoption, maintenance, and 
enforcement of regulations 201 Ky. Admin. Reg. 11:011, Section 1(5) and 
201 Ky. Admin. Reg. 11:121, Section 1(2) arise from and result in 
agreements, combinations, or conspiracies that restrain competition in 
numerous Kentucky real estate brokerage service markets in violation of 
Section 1 of the Sherman Act, 15 U.S.C. 1.

Request for Relief

    Wherefore, the United States prays that final judgment be entered 
against Defendant declaring, ordering, and adjudicating that:
    a. The agreements, combinations, or conspiracies alleged herein 
restrain trade and are illegal under Section 1 of the Sherman Act, 15 
U.S.C. 1;
    b. Defendant be restrained and enjoined from, either directly or 
indirectly, prohibiting Brokers from advertising or offering rebates or 
inducements;
    c. Defendant's regulations 201 Ky. Admin. Reg. 11:011, Section 1(5) 
and 201 Ky. Admin. Reg. 11:121, Section 1(2) are preempted by the 
federal antitrust laws and are null and void;
    d. Defendant shall mail a copy of the Complaint, order, and 
explanatory notice to:
    i. Each Commissioner, director, representative, agent, and employee 
of Defendant Kentucky Real Estate Commission; and
    ii. Each person licensed to provide real estate brokerage in 
Kentucky;
    e. Defendant publish in its Newsletter the explanatory notice and 
an article stating that the regulations prohibiting rebates and 
inducements have been eliminated;
    f. The United States recover its costs in this action; and
    g. Such other relief as the United States may request and that the 
Court deems just and proper.

    Dated: March 30, 2005.

    Respectfully submitted:

For Plaintiff United States of America.

R. Hewitt Pate,
Assistant Attorney General.

Thomas O. Barnett,
Deputy Assistant Attorney General.

Dorothy B. Fountain,
Deputy Director of Operations.

John R. Read,
Chief, Litigation III.

Nina Hale,
Assistant Chief, Litigation III.

Owen M. Kendler,
Mary Beth McGee,
Mark A. Merva,
Maurice E. Stucke,
Attorneys.
United States Department of Justice, Antitrust Division, Litigation 
III; 325 7th Street, NW., Suite 300, Washington, DC 20530. (202) 
616-5935.

[FR Doc. 05-15489 Filed 8-4-05; 8:45 am]
BILLING CODE 4410-11-M