United States v. Consolidated Multiple Listing Service, Inc.; Proposed Final Judgment and Competitive Impact Statement, 22965-22976 [E9-11392]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Notices]
[Pages 22965-22976]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11392]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Consolidated Multiple Listing Service, Inc.; 
Proposed Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the District of South Carolina in 
United States of America v. Consolidated Multiple Listing Service, 
Inc., No. 3:08-CV-1786-SB. On May 2, 2008, the United States filed a 
Complaint alleging that Consolidated Multiple Listing Service, Inc. 
(``CMLS'') violated Section 1 of the Sherman Act, 15 U.S.C. 1, by 
denying consumers choice of innovative fee-for-service business models 
available to consumers in other parts of South Carolina and by adopting 
burdensome prerequisites to membership that prevented some real estate 
brokers, who would likely compete aggressively on price, from becoming 
members of CMLS. The proposed Final Judgment, filed on May 4, 2009, 
requires CMLS to repeal its offending rules and prohibits CMLS from 
adopting any new rules that exclude or otherwise disadvantage brokers 
who compete in innovative ways.
    Copies of the Complaint, proposed Final Judgment and Competitive 
Impact Statement are available for inspection at the Department of 
Justice, Antitrust Division, Antitrust Documents Group, 450 5th Street, 
NW., Room 1010, Washington, DC 20530 (telephone: 202-514-2481), on the 
Department of Justice's Web site at https://www.usdoj.gov/atr, and at 
the Office of the Clerk of the United States District Court for the 
District of South Carolina. Copies of these materials may be obtained 
from the Antitrust Division upon request and payment of the copying fee 
set by Department of Justice regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be addressed 
to John R. Read, Chief, Litigation III Section, Antitrust Division, 
U.S. Department of Justice, 450 5th Street, NW., Suite 4000, 
Washington, DC 20530, (202) 307-0468.

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

In the United States District Court for the District of South Carolina 
Columbia Division

United States of America, Plaintiff, v. Consolidated Multiple Listing 
Service, Inc., Defendant

Civil Action No.
Date: May 2, 2008
Judge:

Complaint for Equitable Relief for Violation of Section 1 of the 
Sherman Act, 15 U.S.C. Sec.  1

    The United States of America, by its attorneys acting under the 
direction of the Attorney General, brings this civil antitrust action 
pursuant to Section 4 of the Sherman Act, 15 U.S.C. 4, against 
Defendant Consolidated Multiple Listing Service, Inc. (``CMLS''), to 
obtain equitable and other relief to prevent and remedy violations of 
Section 1 of the Sherman Act, 15 U.S.C. 1.
    The United States complains and alleges as follows:

I. Introduction

    1. The United States brings this action to prevent CMLS from 
enforcing rules, regulations, by-laws, policies, and procedures 
(collectively ``Rules'') that unreasonably restrain competition among 
real estate brokers in Columbia, South Carolina and the surrounding 
areas (``Columbia Area'').
    2. CMLS is a joint venture comprised of brokers who compete with 
each other to sell brokerage services in the Columbia Area. CMLS, like 
other multiple listing services, provides services to its members, 
including an electronic database of information relating to past and 
current home listings in the Columbia Area. The database serves as a 
clearinghouse for the members to communicate information among 
themselves, such as descriptions of the listed properties for sale and 
offers to compensate other members if they locate buyers. In addition, 
the database allows members who represent buyers to search for nearly 
all the listed properties in the area that match the buyer's needs. By 
providing an efficient means of exchanging information on home 
listings, multiple listing services benefit buyers and sellers of real 
estate, and in turn, buyers of real estate brokerage services, in their 
service areas.
    3. However, that same role makes access to CMLS's database--and 
therefore membership in CMLS--critically important for any broker 
seeking to serve clients efficiently in the Columbia Area. Access to 
the services provided by CMLS is key to being a successful broker, and 
CMLS is the only provider of such services in the Columbia Area. 
Therefore, brokers seeking to provide brokerage services in the 
Columbia Area need to be members of CMLS.
    4. CMLS, its Board of Trustees (``Board''), and its members have 
adopted Rules that govern the conduct and business practices of its 
approximately 370 members and set standards for the admission of new 
members. Through these Rules, CMLS's Board and its members have 
unreasonably inhibited competition over the method of providing 
brokerage services to consumers in the Columbia Area and have 
stabilized the price those consumers pay for brokerage services. For 
example, CMLS's Rules prevent members from providing a set of brokerage 
services that includes less than the full array of services that 
brokers traditionally have provided--even if a consumer prefers to save 
money by purchasing less than all of such services. Additionally, 
CMLS's Rules require members to use a standard, pre-approved contract 
that, among other things, prevents its members from offering to a home 
seller the option of avoiding paying the broker a commission if the 
seller finds the buyer on her own.

[[Page 22966]]

    5. CMLS's Rules also require members to conform other aspects of 
their brokerage businesses in the manner that the group demands. CMLS 
Rules impose unreasonable objective criteria for membership and contain 
subjective standards for admission to membership that allow CMLS 
representatives to deny membership to brokers who might be expected to 
compete more aggressively or in more innovative ways than CMLS's 
members would prefer, thereby excluding such brokers or deterring them 
from seeking membership.
    6. Taken together, CMLS's Rules limit competition among brokers, 
artificially stabilize the price of brokerage services, and deter 
innovation and the emergence of new brokerage business models. By 
adopting and enforcing such Rules, CMLS has violated and continues to 
violate Section 1 of the Sherman Act, 15 U.S.C. 1.

II. Defendant CMLS, Its Board, and Its Members

    7. CMLS is organized as a nonprofit corporation under the laws of 
the State of South Carolina. Its principal place of business is in 
Columbia, South Carolina, and its service area encompasses the counties 
of Richland, Lexington, Saluda, Kershaw, Calhoun, Newberry and 
Fairfield. CMLS is a joint venture comprised of over 370 competing 
brokers in the Columbia Area. Affiliated with those CMLS members are 
over 3,100 other licensed real estate professionals doing business in 
the Columbia Area.
    8. Whenever this Complaint refers to any act or deed of CMLS, it 
means CMLS engaged in the act or deed by or through its members, 
officers, directors, Board, committees, trustees, employees, staff, 
agents, or other representatives while they were actively engaged in 
the management, direction, or control of CMLS's business or affairs.
    9. Various persons and entities, not named as defendants in this 
action, have participated as conspirators with CMLS in the offense 
alleged in this Complaint, and have performed acts and made statements 
to further the conspiracy.

III. Jurisdiction and Venue

    10. This Court has subject matter jurisdiction over this action 
under Section 4 of the Sherman Act, 15 U.S.C. 4, and 28 U.S.C. 1331, 
1337(a), and 1345.
    11. Venue is proper in this District and this Division under 15 
U.S.C. 22, 28 U.S.C. 1391(b), and Civil Local Rule 3.01 because CMLS 
maintains its principal place of business, transacts business, and is 
found within this District and this Division.

IV. Effect on Interstate Commerce

    12. The activities and the violations by CMLS alleged in this 
Complaint affect consumers located in South Carolina and in other 
States. CMLS members have provided and continue to provide residential 
brokerage services to in-state and out-of-State residents seeking to 
buy or sell real estate in the Columbia Area. In 2005, CMLS members 
facilitated the sale of real property worth more than $2 billion and 
they collected commissions of over $125 million for their services. 
Many of the real properties sold in transactions involving CMLS members 
are purchased with mortgages from out-of-state lenders and mortgage 
payments often are made across State lines. CMLS's activities and 
violations are in the flow of, and have a substantial effect on, 
interstate commerce.

V. Concerted Action

    13. CMLS is a combination or conspiracy among its members, who are 
brokers that compete with one another in the Columbia Area. The members 
of CMLS, as a group and through the Board they elect and the staff they 
indirectly employ, have agreed to, adopted, maintained, and enforced 
Rules affecting the method of members' provision of brokerage services, 
participation in CMLS, and access to CMLS's services, including access 
to the electronic listings database. CMLS's Rules are therefore the 
product of agreements and concerted action among its members.

VI. Relevant Markets

    14. The provision of brokerage services to sellers of residential 
real property and the provision of brokerage services to buyers of 
residential real property are relevant service markets within the 
meaning of the antitrust laws.
    15. The brokerage business is local in nature. Most sellers prefer 
to work with a broker who is familiar with local market conditions. 
Likewise, most buyers seek to purchase real estate in a particular 
city, community, or neighborhood, and typically prefer to work with a 
broker who has knowledge of the area in which they have an interest. 
The geographic coverage of CMLS's service area establishes the 
outermost boundaries of the relevant geographic market, although 
meaningful competition among brokers may occur in narrower local areas.

VII. Background of the Offenses

Industry and Market Power

    16. The vast majority of prospective real estate sellers and buyers 
engage the services of a broker. Brokers in the Columbia Area are in 
direct competition with each other to provide brokerage services to 
consumers.
    17. CMLS is the only multiple listing service for the Columbia 
Area. Among other services that CMLS provides its members is the 
pooling and dissemination of information on the vast majority of 
properties available for sale in the Columbia Area. CMLS combines its 
members' real estate listings information into an electronic database 
and makes these data available to all brokers who are members of CMLS. 
By listing information about a property for sale with CMLS, a broker 
can market it efficiently to a large number of potential buyers. A 
broker representing a buyer likewise can search the CMLS database to 
provide the buyer with information about the vast majority of the 
properties for sale in the Columbia Area.
    18. CMLS members use the database to, among other things: 
Communicate to other members the listings information relating to real 
estate that they have for sale; offer to compensate other members as 
cooperating brokers if they locate buyers for those listings; and 
locate real estate for prospective buyers.
    19. CMLS also provides records of sold real estate, which are used 
by brokers working with sellers to set the real property's listing 
price and to determine what offers to accept. Brokers representing a 
buyer likewise use the sold data to help buyers determine what price to 
offer for real estate.
    20. Access to CMLS is critical for brokers who wish to serve buyers 
or sellers successfully in the Columbia Area, and CMLS members account 
for virtually 100 percent of the real estate brokerage services 
provided to home buyers and sellers in the Columbia Area. Accordingly, 
CMLS has market power in the market for real estate brokerage services 
in the Columbia Area.

Alternative Brokerage Models

    21. Brokers who adhere to traditional methods of doing business 
typically charge a fee calculated as a percentage of the sales price of 
the real estate. Some brokers outside of the Columbia Area offer 
alternatives to the traditional methods of providing brokerage 
services. If brokers offering these alternatives were not restricted 
from competing in the Columbia Area, they would provide consumers of 
brokerage services with competitive options and, in the process, would 
place downward

[[Page 22967]]

pressure on the prices charged by brokers offering traditional methods 
of providing brokerage services. However, CMLS's actions have 
unreasonably restricted such competition in the Columbia Area, thereby 
depriving consumers of these options and artificially stabilizing 
prices.
    22. Fee-for-Service Models. Some brokers outside of the Columbia 
Area contract with home buyers and sellers to provide a subset of 
brokerage services charging only for the services that consumers wish 
to purchase. Many of these brokers offer their services for a flat fee 
rather than a percentage of the home's sales price and typically their 
fees are lower than what traditional brokers charge. One popular 
service offered by fee-for-service brokers is known as an ``MLS listing 
only,'' whereby a broker, in exchange for a fee, lists a property on 
the multiple listing service database, while allowing the seller to 
handle all other aspects of the transaction. Another fee-for-service 
package available to consumers outside of the Columbia Area involves 
the broker handling all aspects of the transaction, except for 
attending the closing. This is attractive to home sellers who are 
capable of performing all the necessary closing services themselves, or 
who have separately retained assistance with the closing, and would 
prefer not to pay a broker to attend. Through such packages, buyers and 
sellers can save money by purchasing only the services that they want 
their broker to provide.
    23. Exclusive Agency Listings. Outside of the Columbia Area, 
brokers also are able to offer consumers the opportunity to save money 
on commissions and fees by offering an ``Exclusive Agency Listing,'' 
which is an agreement under which the seller pays no commission or fee 
to his broker if the seller finds the buyer himself.
    24. While these and other competitively significant alternatives to 
the traditional method of providing brokerage services are available to 
consumers outside of the Columbia Area, CMLS's actions have 
unreasonably restricted such competition in the Columbia Area.

VIII. Restraints on Competition

    25. CMLS has harmed competition among brokers in the Columbia Area 
to the detriment of consumers. As a result of CMLS's Rules, consumers 
of brokerage services in the Columbia Area pay higher commissions or 
fees for brokerage services and have fewer alternatives regarding the 
method of providing those brokerage services.
    26. CMLS achieves these adverse effects by adopting and enforcing 
the following Rules, among others:
    a. CMLS's Rules prohibit its members from competing with one 
another by offering consumers the sort of fee-for-service brokerage 
options described in Paragraph 22 above. For example, CMLS's Rules 
require that its members have ``active involvement'' in all aspects of 
the transaction, including ``in the marketing, sale, and closing of the 
property.'' CMLS By-laws, Art. IV. See also CMLS Rules, Rule 1(a) 
(requiring that members only use CMLS's pre-approved contract, which 
includes Article IV's active involvement language). The Rules also 
require that ``[o]ffers on properties included in the CMLS shall be 
made in written form to the Selling Company and not directly to the 
Owner,'' thereby precluding brokers and home sellers in the Columbia 
Area from entering into contracts whereby the brokers would let the 
sellers handle the offers in return for a reduced commission. CMLS 
Rules, Rule 2. These Rules prohibit brokers and home sellers from 
negotiating brokerage service terms and, consequently, harm consumers 
in the Columbia Area because they have fewer brokerage service models 
from which to choose.
    b. CMLS's Rules prohibit its members from competing with one 
another by offering alternative contractual terms to consumers, such as 
the Exclusive Agency Listings contract described in Paragraph 23 above. 
CMLS requires that ``[e]ach listing submitted by a Member shall be in 
writing on the Exclusive Right to Sell Form as approved by the Board 
from time to time. No alteration of any kind to the provisions of the 
Listing Agreement shall be allowed.'' CMLS Rules, Rule 1(a). That same 
Rule forbids CMLS's members and consumers from ``mak[ing] any agreement 
* * * which varies, in any way, the provisions of the Listing 
Agreement.'' This Rule, for example, prevents brokers and home sellers 
in the Columbia Area from agreeing to an Exclusive Agency Listing 
whereby the seller would pay no commission or fee to her broker if the 
seller finds the buyer herself. Consequently, through CMLS, brokers in 
the Columbia Area have stabilized the commissions and fees they 
collect, at the expense of Columbia Area consumers.
    c. These examples are not exhaustive. Other CMLS Rules have similar 
anticompetitive effects. CMLS's Rules, coupled with the need to be a 
CMLS member in order to compete effectively in the Columbia Area, allow 
brokers who are members of CMLS to prevent innovative or aggressive 
brokers from competing by denying them membership in CMLS, and to 
restrict the ways in which existing Columbia Area brokers do business 
by disciplining existing members who compete too aggressively or in a 
manner inconsistent with the wishes of other CMLS members. For example, 
CMLS's Rules require that members be ``primarily in the real estate 
business within primary areas served by the CMLS.'' CMLS By-laws, Art. 
III, Sec.  1. CMLS also refuses to admit brokers who do not have 
commercial offices in the Columbia Area. CMLS Rules, Rule 5(b). These 
Rules exclude brokers located outside of the Columbia Area or that 
engage primarily in a business other than real estate, even if such 
brokers are fully licensed by the State of South Carolina to serve as 
real estate brokers. Moreover, CMLS provides its Board and officers 
unfettered discretion to reject applicants for membership, CMLS Rules, 
Rule 5(c), while simultaneously requiring those potential competitors 
to provide information about their proposed brokerage models and 
competitive histories. CMLS By-laws, Art. III, Sec. Sec.  6-7. In 
addition to maintaining unfettered discretion over membership 
decisions, CMLS imposes an excessive initial fee on new members, well 
above its costs of adding them to the membership. See CMLS Rules, Rule 
5(b). And, CMLS maintains unfettered discretion to expel or discipline 
members. CMLS By-laws, Art. III, Sec.  4. Consequently, through CMLS, 
brokers in the Columbia Area have precluded the entry of aggressive 
competitors and stifled aggressive competition between members.
    27. On April 17, 2008, after the United States informed CMLS of its 
intention to bring this action, CMLS's counsel told counsel for the 
United States that it had voted to amend some of its Rules. CMLS's 
counsel told counsel for the United States that the amendments affect 
some of the Rules listed in Paragraph 26, but that other of the rules 
about which the United States complains have not been changed. CMLS has 
not identified for the United States the precise changes that CMLS made 
to its Rules despite requests that it do so. Even if CMLS has changed 
some of its rules, those rules may well continue to violate the 
antitrust laws. Furthermore, even if CMLS, in the face of this lawsuit, 
has in fact brought some of its rules into conformity with the 
antitrust laws, CMLS retains complete discretion to make further 
changes to those rules that would unduly restrict competition and thus 
violate the Federal antitrust laws.

[[Page 22968]]

    28. Taken individually or in conjunction with each other, the Rules 
restrain trade, and are not reasonably necessary to make a multiple 
listing service more efficient or effective nor to achieve any other 
procompetitive benefits. Therefore, the Rules are anticompetitive and, 
as a result, consumers of brokerage services in the Columbia Area pay 
higher commissions or fees for brokerage services and have fewer 
choices among types of brokers and the method of providing the 
brokerage services they offer.

IX. Violation Alleged

    29. CMLS's adoption and enforcement of the Rules described above 
constitutes a contract, combination, or conspiracy among CMLS and its 
members that unreasonably restrains competition in the Columbia Area 
brokerage markets in violation of Section 1 of the Sherman Act, 15 
U.S.C. 1.
    30. The aforesaid contract, combination, or conspiracy has had and 
will continue to have anticompetitive effects in the relevant markets 
including: Stabilizing the price of broker commissions and fees; 
reducing competition on the method of providing brokerage services; 
raising barriers to entry; and suppressing innovation.
    31. This contract, combination, or conspiracy is not reasonably 
necessary to accomplish any of CMLS's legitimate goals.

X. Request for Relief

    Wherefore, the United States prays that final judgment be entered 
against CMLS declaring, ordering, and adjudging that:
    a. The aforesaid contract, combination, or conspiracy unreasonably 
restrains trade and is illegal under Section 1 of the Sherman Act, 15 
U.S.C. 1;
    b. CMLS, its members, officers, directors, Board, committees, 
trustees, employees, agents, representatives, successors, and assigns 
and all other persons acting or claiming to act on their behalf, be 
permanently enjoined from engaging in, carrying out, renewing or 
attempting to engage in, carry out or renew the contract, combination, 
or conspiracy alleged herein, or any other contract, combination, or 
conspiracy having a similar purpose or effect in violation of Section 1 
of the Sherman Act, 15 U.S.C. 1;
    c. CMLS eliminate and cease enforcing any and all Rules that 
unreasonably restrain trade and be prohibited from otherwise acting to 
unreasonably restrain trade; and
    d. The United States be awarded its costs of this action and such 
other relief as may be appropriate and as the Court may deem just and 
proper.

    Dated: May 2, 2008.

For Plaintiff The United States of America

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Thomas O. Barnett,
Assistant Attorney General.

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David L. Meyer,
Deputy Assistant Attorney General.

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J. Robert Kramer II,
Director of Operations.

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John Read,
Chief, Litigation III Section.

Nina Hale,
Assistant Chief, Litigation III Section.

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Ethan C. Glass,
Lisa A. Scanlon,
Owen M. Kendler,
Nathan Sutton,
Christopher M. Ries,
Attorneys for the United States of America, U.S. Department of 
Justice, Antitrust Division, Litigation III Section, 325 7th Street, 
NW., Suite 300, Washington, DC 20530, Telephone: (202) 307-0468.

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Kevin F. Mcdonald,
Acting United States Attorney, District of South Carolina.

By:

Jennifer J. Aldrich (6035),
Assistant United States Attorney, 1441 Main Street, Suite 500, 
Columbia, SC 29201, Telephone: (803) 343-3176.

United States District Court for the District of South Carolina 
Columbia Division

United States of America, Plaintiff, v. Consolidated Multiple Listing 
Service, Inc., Defendant

Case No. 3:08-CV-01786-SB

Date: May 8, 2009

Competitive Impact Statement

    Plaintiff United States of America (``United States''), pursuant to 
Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA'' or 
``Tunney Act''), 15 U.S.C. 16(b)-(h), files this Competitive Impact 
Statement relating to the proposed Final Judgment submitted for entry 
in this civil antitrust proceeding.

I. Nature and Purpose of the Proceedings

    The United States brought this lawsuit against Defendant 
Consolidated Multiple Listing Service, Inc. (``CMLS'') on May 2, 2008, 
to stop CMLS from violating Section 1 of the Sherman Act, 15 U.S.C. 1, 
by excluding and restricting new forms of competition and harming 
consumers of real estate brokerage services throughout the Columbia, 
South Carolina area. CMLS is a joint venture of nearly all active 
residential real estate brokers in the Columbia area. It controls 
access to the Columbia real estate brokerage market because it operates 
the area's only multiple listing service (``MLS''), a database of 
nearly all homes for sale through a broker. Because local brokers 
effectively need to be members of CMLS to be in business, CMLS has the 
power to dictate how brokers can compete and to exclude brokers who 
plan to compete in ways that traditional brokers do not like.
    The United States' complaint alleged that CMLS used this power to 
adopt rules that disrupted the competitive process by impeding the 
ability of innovative brokers to enter the Columbia market and 
challenge the competitive methods of CMLS's existing members. CMLS 
required brokers to be actively involved in all aspects of each real 
estate transaction, even if their clients desired fewer services at a 
lower cost. It prohibited brokers from entering ``exclusive agency'' 
agreements with sellers under which the seller would owe no commission 
if he or she, rather than the broker, found a buyer. Brokers who hoped 
to lower their overhead by working from home offices or who were 
located in other areas but wanted to offer their services to home 
buyers and sellers in Columbia were denied membership in CMLS. CMLS 
charged applicants for membership a nonrefundable $5,000 initiation fee 
and demanded that they appear before a membership committee composed of 
the applicant's prospective competitors to discuss ``the nature of 
[their] business[es].'' If CMLS's board members did not like applicants 
or wanted to avoid competing with them, they could vote to reject the 
application.
    As a result of these policies, consumers in Columbia were denied 
the benefits that innovative brokers have brought to real estate 
markets in other parts of South Carolina and around the country. Not 
only were Columbia-area home sellers unable to hire brokers with 
innovative business models--such as ``fee-for-service'' brokers who 
would provide only the services the sellers desired at a lower cost 
than full service brokers typically charged--consumers in Columbia paid 
more for brokerage services than consumers in other markets.
    On May 4, 2009, the United States filed a Stipulation and proposed 
Final Judgment. The proposed Final Judgment, which is described more 
fully below, is designed to eliminate the harm to competition caused by 
CMLS's policies and restore competition to the

[[Page 22969]]

real estate brokerage market in Columbia. It requires CMLS to repeal 
its offending rules and prohibits CMLS from adopting any rules or 
practices that exclude or otherwise disadvantage brokers who compete in 
innovative ways.

    The United States and CMLS have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA, unless 
the United States withdraws its consent. Entry of the proposed Final 
Judgment would terminate this action, except that this Court would 
retain jurisdiction to construe, modify, and enforce the proposed 
Final Judgment and to punish violations thereof.

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

A. Description of the Defendant and Its Activities
    CMLS is owned by, and its membership consists of, real estate 
brokers who compete with each other to represent buyers and sellers of 
homes in the Columbia area. It operates the Columbia area's only MLS, a 
listing service that maintains a database of nearly all homes for sale 
through a broker. Brokers in Columbia regard membership in CMLS to be 
critical to their ability to compete effectively for buyers and 
sellers. By joining CMLS, brokers in Columbia can promise their seller 
clients that information about the seller's property will immediately 
be shared with virtually all other brokers in the area. Brokers who 
work with buyers can likewise promise their buyer customers access to 
the widest possible array of properties listed for sale through 
brokers.
    CMLS is controlled by its Board of Trustees, which has been 
dominated by traditional brokerage firms. For example, of the nine CMLS 
Board members in 2008, eight represented traditional, high-end 
brokerage firms that do not employ discount or alternative business 
models. The CMLS Board possessed the power to approve or deny 
membership applications, propose by-laws (subject to membership 
approval), and make rules for members. All CMLS member brokers must 
agree, in writing, to follow the CMLS rules as a condition of 
membership.
    Like MLSs in other areas, CMLS possesses substantial market power. 
To compete successfully in Columbia, a broker must be a member of CMLS; 
to be a member, a broker must adhere to any restrictions that CMLS's 
Board imposes. Unlike most other MLSs, however, CMLS exercised this 
market power to regulate how brokers in Columbia were allowed to 
compete and to enact burdensome prerequisites to membership that 
prevented some real estate brokers, such as those who would likely 
compete aggressively on price, from becoming members of CMLS, ensuring 
that those brokers could not compete in the Columbia area.
B. Industry Background
    The prices that Columbia-area consumers paid for brokerage services 
increased substantially from 2001 to 2007. Brokers who adhere to 
traditional methods of doing business typically charge a commission 
calculated as a percentage of the sales price of the home. As housing 
prices in Columbia (as in many other parts of the country) increased 
during that time period, commission fees that consumers paid 
traditional, full-service brokers also increased.
    Outside Columbia, brokers responded to the higher home prices and 
increasing fees by competing in new ways. Many brokers outside Columbia 
have adopted fee-for-service business models under which home sellers 
pay a flat fee for specific services they want their broker to perform. 
Home sellers who choose fee-for-service brokers and who, for instance, 
take responsibility for marketing their own homes, negotiating their 
own contracts, or attending closing without broker assistance can 
substantially reduce the fees they pay their brokers. Many home sellers 
in markets outside of Columbia have opted to purchase only a single 
brokerage service: Having the broker submit information about the 
seller's property to the MLS. Some brokers offer an MLS-entry-only 
service for only a few hundred dollars (with an additional fee to be 
paid to any MLS member who finds a buyer for the property). Home 
sellers who elect to work with these brokers forego important services 
provided by full-service brokers, but can save thousands of dollars.
    Other brokers outside Columbia deliver some brokerage services over 
the Internet, reducing their costs by automating some time-intensive 
tasks and passing cost savings onto consumers in the form of lower 
commissions. The ease of sharing information over the Internet has also 
allowed some brokers to serve a larger geographic area than they were 
able to when face-to-face communication was expected. Some brokers from 
other parts of South Carolina and neighboring states have expressed 
interest in competing with existing Columbia-area brokers and offering 
brokerage services to buyers and sellers in Columbia.
C. Description of the Alleged Violation
    CMLS unreasonably restrained competition by impeding the 
competitive process through its adoption and enforcement of rules that 
banned innovative forms of competition and raised barriers to entry for 
new competitors. These rules, which were agreed to by CMLS's member 
brokers, injured consumers by limiting the variety of services 
available from Columbia-area brokers and raising the commissions that 
consumers must pay them. As none of these rules enhanced the efficiency 
or effectiveness of its MLS, CLMS's rules violate Section 1 of the 
Sherman Act, 15 U.S.C. 1.\1\
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    \1\ CMLS's rules harmed competition in the provision of real 
estate brokerage services to buyers and sellers. The relevant 
geographic market in which these brokers compete is the greater 
Columbia area served by CMLS. As discussed above, CMLS possesses 
substantial market power in this market because virtually all 
Columbia-area brokers regard membership in CMLS and access to its 
MLS to be essential to their ability to compete effectively to serve 
Columbia-area buyers and sellers.
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    As alleged in the complaint, CMLS harmed competition through the 
following rules.
1. Freedom-of-Contract Restriction
    CMLS prohibited brokers and their clients from entering into any 
agreement other than the single form contract dictated by CMLS. The 
single contract allowed by CMLS--an ``exclusive right to sell'' 
agreement--required the seller to pay a commission to the broker even 
if the seller, and not the broker, was responsible for finding a buyer 
for the home. In other markets, clients can negotiate an ``exclusive 
agency'' agreement under which the seller owes no commission to the 
broker if the seller finds a buyer. Exclusive agency agreements are 
favored by sellers who want to market their own properties, even after 
hiring a broker, and preserving the option of paying no commission. 
CMLS outlawed these agreements and any other deviations from its 
mandatory form contract.
2. ``Active Involvement'' Requirement
    CMLS required brokers to be ``active[ly] involve[d]'' in the 
marketing, sale, and closing of each property. This prevented Columbia-
area consumers from saving money by working with fee-for-service 
brokers who charged only for the specific services the consumers 
desired. This rule caused one Columbia-area broker who also operates in 
other parts of South Carolina to charge Columbia-area consumers $500 
more than he charges consumers in other markets, where he is not 
obligated to

[[Page 22970]]

provide services consumers may not want.
3. Home Office Prohibition
    CMLS required all new members to maintain commercial offices and 
prohibited them from operating out of their homes. This prevented entry 
into the Columbia market by many brokers who hoped to reduce their 
overhead by using home offices and passing on their cost savings to 
their clients in the form of lower fees.
4. Out-of-Area Broker Prohibition
    CMLS insulated itself from competition from brokers outside of the 
Columbia area by requiring that all brokers maintain an office in the 
Columbia area. Discount brokers operating outside Columbia found they 
could not offer their services to Columbia-area consumers because their 
low-margin business models did not support opening offices within the 
CMLS territory.
5. Restrictive Membership Requirements
    CMLS charged applicants a nonrefundable initiation fee of $5,000, 
greater than its costs in adding new members and substantially higher 
than similar entry fees charged by any other MLSs in South Carolina. 
CMLS, which maintains a million-dollar-surplus annually--in part based 
on these higher-than-necessary initiation fees--distributes a portion 
of its surplus each year to existing members, effectively taxing new 
competition to enrich incumbents. CMLS also required applicants for 
membership to appear for an interview with a membership committee 
consisting of the traditional, full-service brokers that dominated 
CMLS's Board, at which applicants were expected to discuss the nature 
of their businesses. This interview requirement deterred applications 
from several nontraditional, low-priced brokers who were fearful of 
losing their nonrefundable initiation fee if the interview committee 
opposed their business model and declined to approve their application. 
These brokers' fears were well founded, as CMLS's Board also possessed 
the power to deny membership to brokers who they feared would compete 
too aggressively.
D. Harm From the Alleged Violation
    Taken together, CMLS's rules--established through the exercise of 
market power by CMLS's broker members--impeded competition among 
brokers in Columbia, denying Columbia-area consumers choices that are 
available outside of Columbia and increasing the fees they paid for 
brokerage services. The prevalence of nontraditional service offerings 
in markets outside Columbia makes it clear that consumers demand these 
offerings. The CMLS rules prohibited Columbia-area brokers from 
competing to satisfy that demand. One study conducted in connection 
with this case estimated, based on experiences in other markets, that 
approximately 1,500 Columbia-area home sellers were denied their 
preferred option--an exclusive agency listing--between 2005 and 2008.
    Not surprisingly, data collected and analyzed in connection with 
this case also revealed that Columbia-area consumers paid more, on 
average, for brokerage services than consumers in other markets. Data 
supplied by four Columbia-area brokers that also do business elsewhere 
in South Carolina revealed that each broker collected more in 
commission fees from Columbia-area consumers than it did for the same 
service provided to consumers in other areas. On average, Columbia-area 
home sellers paid these brokers approximately $1,000 more per 
transaction than home sellers outside Columbia.
    In sum, by disrupting the competitive process, CMLS's rules forced 
Columbia-area consumers to pay for less preferred and often more 
expensive brokerage services.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment will restore competition to the 
Columbia-area brokerage market by eliminating the anticompetitive CMLS 
rules and imposing additional restrictions to ensure that CMLS does not 
adopt new methods to continue to impede competition. It requires CMLS 
to repeal its freedom-of-contract restriction,\2\ its ``active 
involvement'' requirement,\3\ and its requirement that brokers maintain 
an office in the Columbia area.\4\ CMLS repealed its home-office 
prohibition during the course of the litigation. The proposed Final 
Judgment prohibits it from reinstating the rule.\5\
---------------------------------------------------------------------------

    \2\ See proposed Final Judgment, ] V.B.7. Sellers who enter 
exclusive agency agreements with their brokers, under which they owe 
no commission if they find buyers for their properties, may seek to 
market their homes themselves and not rely on their brokers for 
marketing services. The proposed Final Judgment also prohibits CMLS 
from interfering in the marketing efforts of home sellers who enter 
these exclusive agency agreements. See id. at ]] IV.A.4, V.B. 11, 
V.B.12 & V.B.16.
    \3\ See id., ] V.B.3. The proposed Final Judgment also requires 
CMLS to eliminate a related rule that required that offers to 
purchase a property be submitted only to the seller's broker, and 
not directly to the seller, regardless of the seller's wishes. See 
id., ] V.B.10.
    \4\ See id., ] V.B.13. CMLS also unnecessarily burdened brokers 
from other markets who sought to compete in Columbia by requiring 
that its members use CMLS-supplied keyboxes (devices installed on 
homes for sale that store a key that CMLS members can use to access 
the home to show to potential buyers). This requirement necessitated 
two trips to Columbia: One to pick up the keybox from CMLS and 
install it on the seller's home and another to remove and return the 
keybox to CMLS. The proposed Final Judgment alleviates this burden 
by allowing home sellers to pick up a keybox from CMLS and by 
requiring CMLS to maintain a list of local brokers available to 
remove and return keyboxes. See id., ] V.B.18.
    \5\ See id., ]] IV.A.1 & IV.A.2.
---------------------------------------------------------------------------

    CMLS will also no longer be able to prevent the entry of innovative 
brokers. Under the proposed Final Judgment, applicants for membership 
will no longer be forced to submit to a potentially intimidating 
interview with existing CMLS members,\6\ and CMLS's Board will no 
longer possess the discretion to deny applications for admission.\7\ In 
fact, under the proposed Final Judgment, CMLS must admit any broker who 
is duly licensed in South Carolina.\8\ The proposed Final Judgment also 
prohibits CMLS from charging application or initiation fees that exceed 
its ``reasonably estimated cost'' in adding new members.\9\ This will 
ensure that applicants will not face an unnecessarily high entry fee 
and will end the practice of incumbent members enriching themselves at 
the expense of potential entrants.
---------------------------------------------------------------------------

    \6\ See id. ] V.B.14. Applicants will be required to complete an 
introductory class in the use of CMLS's system (unless they are 
already familiar with the system) and an orientation with a CMLS 
staff member. CMLS will provide the introductory training class and 
orientation no less frequently than once every two weeks. See id ]] 
V.B.17 & V.E.
    \7\ See id., ] V.B.14. CMLS collects copies of some agreements 
between brokers and their seller clients to ensure that a home 
seller has actually selected the broker to provide brokerage 
services in the sale of the seller's property or that the broker has 
complied with CMLS's reasonable requirement that brokers promptly 
submit information about the property to CMLS. These agreements, 
however, also identify the commission fee the seller agrees to pay 
his or her broker. To ensure that no CMLS member broker is able to 
learn about competitors' pricing practices from these agreements, 
the proposed Final Judgment requires CMLS to prevent any CMLS member 
from seeing the agreements it collects and permits brokers who are 
selected for CLMS's audit of their agreements to substantially 
redact the agreement to remove any competitively sensitive 
information. See id., ]] V.B.9 & V.F.
    \8\ See id., ] IV.A.1.
    \9\ Id., ] IV.B. CMLS had also raised entry costs by requiring 
that applicants obtain at least $500,000 in errors and omissions 
insurance coverage. This requirement forced a number of CMLS members 
who were unable to obtain insurance coverage to terminate their 
memberships in CMLS. The proposed Final Judgment requires CMLS to 
repeal its insurance requirement, but allows CMLS to insist that 
uninsured brokers disclose their lack of insurance coverage to 
clients and other brokers. Id., ] V.B.20. This disclosure 
requirement will ensure that sellers and other brokers are fully 
informed about a broker's insurance coverage and will allow the 
marketplace to dictate the need for such coverage.
---------------------------------------------------------------------------

    The proposed Final Judgment also broadly prohibits CMLS from 
excluding

[[Page 22971]]

any licensed broker (who does not possess a criminal record\10\) from 
membership and from discriminating against or disadvantaging any broker 
based on the services the broker provides his or her clients, the 
contractual forms the broker uses, the broker's pricing or commission 
rates, or the broker's office location.\11\
---------------------------------------------------------------------------

    \10\ See id., ]] VI.A.
    \11\ Id., ]] IV.A.1 & IV.A.2.
---------------------------------------------------------------------------

    Finally, the proposed Final Judgment, applicable for ten years 
after its entry by this Court,\12\ establishes an antitrust compliance 
program under which CMLS must furnish to the United States minutes of 
each meeting of CMLS's Board or its committees and copies of its rules 
following any rule changes.\13\ After entry of the proposed Final 
Judgment, CMLS is also required to provide copies of the Final Judgment 
and of its rules, modified to conform to the Final Judgment, to each of 
its members and to each person CMLS knows to have inquired about 
membership in the past five years.\14\ The proposed Final Judgment 
expressly places no limitation on the United States' ability to 
investigate or bring an antitrust enforcement action in the future to 
prevent harm to competition caused by any rule adopted or enforced by 
CMLS.\15\
---------------------------------------------------------------------------

    \12\ Id., ] X.
    \13\ Id., ] V.G.
    \14\ Id., ] V.H.
    \15\ Id., ] IX.
---------------------------------------------------------------------------

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. Sec.  15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in Federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent private lawsuit that may be brought against CMLS.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and CMLS have stipulated that the proposed Final 
Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register, or the last date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States, which remains free to withdraw 
its consent to the proposed Final Judgment at any time prior to the 
Court's entry of judgment. The comments and the response of the United 
States will be filed with the Court and published in the Federal 
Register.
    Written comments should be submitted to: John R. Read, Chief, 
Litigation III Section, Antitrust Division, United States Department of 
Justice, 450 Fifth Street, NW., Suite 4000, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.\16\
---------------------------------------------------------------------------

    \16\ Id., ] VIII.
---------------------------------------------------------------------------

VI. Alternatives to the Proposed Amended Final Judgment

    At several points during the litigation, the United States received 
from defendant CMLS proposals or suggestions that would have provided 
less relief than is contained in the proposed Final Judgment. These 
proposals and suggestions were rejected.
    The United States considered, as an alternative to the proposed 
Final Judgment, proceeding with a full trial on the merits against 
CMLS. The United States is satisfied that the relief contained in the 
proposed Final Judgment will quickly establish, preserve, and ensure 
that Columbia-area consumers can benefit from unfettered competition in 
the Columbia market.

VII. Standard of Review Under the Appa for Proposed Final Judgment

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a sixty-day comment period, after which the court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. Sec.  16(e)(1). In making that 
determination, the court, in accordance with the statute as amended in 
2004, is required to consider:

    (A) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) The impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, 
the court's inquiry is necessarily a limited one as the United States 
is entitled to ``broad discretion to settle with the defendant within 
the reaches of the public interest.'' United States v. Microsoft Corp., 
56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC 
Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public 
interest standard under the Tunney Act).\17\
---------------------------------------------------------------------------

    \17\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

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


[[Page 22972]]


    [T]he balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\18\ In 
determining whether a proposed settlement is in the public interest, a 
district court ``must accord deference to the government's predictions 
about the efficacy of its remedies, and may not require that the 
remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F. 
Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 (noting the need 
for courts to be ``deferential to the government's predictions as to 
the effect of the proposed remedies''); United States v. Archer-
Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that 
the court should grant due respect to the United States' prediction as 
to the effect of proposed remedies, its perception of the market 
structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \18\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the 
court is constrained to ``look at the overall picture not 
hypercritically, nor with a microscope, but with an artist's 
reducing glass''). See generally Microsoft, 56 F.3d at 1461 
(discussing whether ``the remedies [obtained in the decree are] so 
inconsonant with the allegations charged as to fall outside of the 
`reaches of the public interest''').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be approved 
even if it falls short of the remedy the court would impose on its own, 
as long as it falls within the range of acceptability or is `within the 
reaches of public interest.''' United States v. Am. Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also 
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 
1985) (approving the consent decree even though the court would have 
imposed a greater remedy). To meet this standard, the United States 
``need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 
489 F. Supp. 2d at 17.
    Moreover, the court's role under the APPA is limited to reviewing 
the remedy in relationship to the violations that the United States has 
alleged in its Complaint, and does not authorize the court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459. Because the ``court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the first 
place,'' it follows that ``the court is only authorized to review the 
decree itself,'' and not to ``effectively redraft the complaint'' to 
inquire into other matters that the United States did not pursue. Id. 
at 1459-60. As the United States District Court for the District of 
Columbia recently confirmed in SBC Communications, courts ``cannot look 
beyond the complaint in making the public interest determination unless 
the complaint is drafted so narrowly as to make a mockery of judicial 
power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding the unambiguous instruction that ``[n]othing in 
this section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2). This language effectuates what 
Congress intended when it enacted the Tunney Act in 1974, as Senator 
Tunney explained: ``[t]he court is nowhere compelled to go to trial or 
to engage in extended proceedings which might have the effect of 
vitiating the benefits of prompt and less costly settlement through the 
consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of 
Senator Tunney). Rather, the procedure for the public interest 
determination is left to the discretion of the court, with the 
recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp. 2d at 11.\19\
---------------------------------------------------------------------------

    \19\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt 
failure of the government to discharge its duty, the Court, in 
making its public interest finding, should * * * carefully consider 
the explanations of the government in the competitive impact 
statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 
(1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'').
---------------------------------------------------------------------------

VIII. Determinative Documents

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

Respectfully submitted,
For Plaintiff The United States of America

s/ Jennifer J. Aldrich
William Walter Wilkins, III,
United States Attorney, District of South Carolina.

By:

Jennifer J. Aldrich (6035),
Assistant United States Attorney, 1441 Main Street, Suite 500, 
Columbia, SC 29201, Telephone: (803) 343-3176.
David C. Kully,
Timothy T. Finley,
Ethan C. Glass,
Lisa Scanlon,
Nathan Sutton,
Owen M. Kendler,
United States Department of Justice, Antitrust Division, Litigation 
III Section, 450 5th Street, NW., Suite 400, Washington, DC 20530, 
Telephone: (202) 305-9969.
Dated: May 8, 2009

Certificate of Service

    I, Jennifer J. Aldrich, certify that on this 8th day of May, 2009, 
I caused a copy of the Competitive Impact Statement to be served on the 
person listed below by ECF.

Edward M. Woodward, Jr.
Woodward, Cothran & Herndon
P.O. Box 12399
Columbia, SC 29211
e-mail: emwoodward@wchlaw.com
Counsel for Defendant Consolidated Multiple Listing Service, Inc.

s Jennifer J. Aldrich
Jennifer J. Aldrich

United States District Court for the District of South Carolina 
Columbia Division

United States of America, Plaintiff, v. Consolidated Multiple Listing 
Service, Inc., Defendant

Case No. 3:08-CV-01786-SB

Filed: 05/04/2009

[Proposed] Final Judgment

    Whereas, Plaintiff, United States of America, filed its Complaint 
on May 2, 2008, alleging that Defendant Consolidated Multiple Listing 
Service,

[[Page 22973]]

Inc. (``CMLS'') adopted rules and practices that exclude competitors 
from and restrain competition in the Columbia, South Carolina, real 
estate brokerage market in violation of Section 1 of the Sherman Act, 
15 U.S.C. 1, and Plaintiff and Defendant, by their respective 
attorneys, have consented to the entry of this Final Judgment without 
trial or adjudication of any issue of fact or law, and without this 
Final Judgment constituting any evidence against, or any admission by, 
any party regarding any issue of fact or law;
    Whereas, the United States requires CMLS to agree to certain 
procedures and prohibitions for the purposes of preventing and 
remedying the loss of competition alleged in the Complaint;
    Whereas, CMLS agrees to be bound by the provisions of this Final 
Judgment pending its approval by the Court;
    Whereas, the purpose of this Final Judgment is the prompt and 
certain elimination of barriers to new and innovative broker 
competitors and impediments to competition among brokers in the 
Columbia area;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is ordered, adjudged, and decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Complaint states a claim upon which 
relief may be granted against CMLS under Section 1 of the Sherman Act, 
as amended, 15 U.S.C. 1.

II. Definitions

    As used in this Final Judgment:

    A. ``Board'' means CMLS's Board of Directors or Board of 
Trustees.
    B. ``Broker-in-Charge'' means a broker-in-charge as the term is 
defined under Title 40, Chapter 57 of the Code of Laws of South 
Carolina.
    C. ``CMLS'' means the Defendant, Consolidated Multiple Listing 
Service, Inc., its predecessors, successors, subsidiaries, 
affiliates, partnerships, and joint ventures and all directors, 
trustees, officers, employees, agents and representatives of the 
foregoing. The terms ``subsidiary,'' ``affiliate,'' and ``joint 
venture'' refer to any Person in which there is or has been partial 
(twenty percent or more) or total ownership or control between CMLS 
and any other Person.
    D. ``Department of Justice'' means the United States Department 
of Justice, Antitrust Division.
    E. ``Including'' means including, but not limited to.
    F. ``Licensee'' means a Person licensed as a broker or salesman 
under Title 40, Chapter 57 of the Code of Laws of South Carolina and 
affiliated with a Member of CMLS.
    G. ``Member'' means an Owner who is entitled to receipt of or 
access to all products and services that CMLS offers to any member 
or participant.
    H. ``Membership'' means being a Member of CMLS.
    I. ``Owner'' means a person who is or employs a Broker-in-
Charge.
    J. ``Person'' means any natural person, corporation, company, 
partnership, joint venture, firm, association, proprietorship, 
agency, board, authority, commission, office, or other business or 
legal entity, whether private or governmental.
    K. ``Rule'' means any CMLS rule, bylaw, policy, standard, or 
guideline.
    L. The terms ``and'' and ``or'' have both conjunctive and 
disjunctive meanings.

III. Applicability

    This Final Judgment applies to CMLS and all other persons in active 
concert or participation with it who receive actual notice of this 
Final Judgment by personal service or otherwise.

IV. Prohibited Conduct

    A. Subject to the provisions of Section VI of this Final 
Judgment, CMLS shall not adopt, maintain, or enforce any Rule, or 
enter into or enforce any agreement or practice, that directly or 
indirectly
    1. Denies Membership in CMLS to any Owner who requests 
Membership in CMLS;
    2. Discriminates against or disadvantages any Member or Licensee 
based on the Member's or Licensee's office location, pricing or 
commission rates, business model, contractual forms or types used, 
or services or activities the Member or Licensee performs or does 
not perform for any home buyer or home seller;
    3. Conditions CMLS's acceptance of any listing or its provision 
of any other product or service to any Member or any Licensee on the 
Member's or Licensee's pricing or commission rate or performance of 
or agreement to perform any service or activity for any home buyer 
or home seller; or
    4. Prohibits, restrict