United States, 81489-81501 [2020-27685]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
[Notices]
[Pages 81489-81501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27685]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. National Association of REALTORS[supreg] 
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 Columbia in United 
States of America v. National Association of REALTORS[supreg], Civil 
Action No. 1:20-cv-03356. On November 19, 2020, the United States filed 
a Complaint alleging that the certain of Defendant's, the National 
Association of REALTORS[supreg] (``NAR''), rules, policies, and 
practices promulgated by NAR resulted in a lessening of competition 
among real estate brokers and agents to the detriment of American home 
buyers in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. The 
proposed Final Judgment, filed at the same time as the Complaint, is 
designed to remedy the anticompetitive effects alleged in the 
Complaint. Under the proposed Final Judgment, NAR is required to 
repeal, eliminate, or modify its rules, practices, and policies that 
the Division alleges in the Complaint violate the Sherman Act.
    Specifically, NAR and NAR-affiliated multi-listing services 
(``MLSs'') must not (1) adopt, maintain, or enforce any rule, practice, 
or policy or (2) enter into any agreement or practice that directly or 
indirectly:
    a. Prohibits, discourages, or recommends against an MLS or real 
estate broker or agent working with a NAR-affiliated MLS (``MLS 
Participant \1\ or REALTOR[supreg]'') publishing or displaying to 
consumers any MLS data specifying the compensation offered to other MLS 
Participants, such as buyer brokers;
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    \1\ Under the proposed Final Judgment, an ``MLS Participant'' is 
defined as ``a member or user of, a participant in, or a subscriber 
to an MLS.'' (See Proposed Final Judgment, Section II--Definitions.)
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    b. permits or requires MLS Participants, including buyer brokers, 
to represent or suggest that their services are free or available to a 
home buyer at no cost to the home buyer;
    c. permits or enables MLS Participants to filter, suppress, hide, 
or not display or distribute MLS listings based on the level of 
compensation offered to the buyer broker or the name of the brokerage 
or brokers or agents; or
    d. prohibits, discourages, or recommends against allowing any 
licensed real estate broker or agent to access, with approval from the 
home seller, the lockboxes of properties listed on an MLS.
    As discussed in further detail in the Competitive Impact Statement, 
the proposed Final Judgement also requires NAR to take affirmative 
steps to remedy the competitive harm alleged in the Complaint by 
requiring adopting new rules, the content of which must be approved by 
the United States that effectuates the foregoing prohibitions.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website at https://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the District of 
Columbia. 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, including the name of the submitter, and 
responses thereto, will be posted on the Antitrust Division's website, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Chief, Media, 
Entertainment and Professional Services Section, Antitrust Division, 
Department of Justice, 450 Fifth Street NW, Suite 4000, Washington, DC 
20530 (telephone: 202-616-5935).

Suzanne Morris,
Chief, Premerger and Division Statistics, Antitrust Division.

United States District Court for the District of Columbia

    United States of America, Department of Justice, Antitrust 
Division, 450 Fifth Street NW, Suite 4000, Washington, DC 20530, 
Plaintiff, v. National Association of Realtors[supreg], 430 North 
Michigan Ave., Chicago, IL 60611, Defendant.
Case No. 1:20-cv-3356-TJK

Complaint

    The United States of America brings this civil antitrust action to 
obtain equitable relief against Defendant National Association of 
REALTORS[supreg]. The United States alleges as follows:

I. Nature of the Action

    1. Defendant National Association of REALTORS[supreg] (``NAR'') has 
adopted a series of rules, policies, and practices governing, among 
other things, the publication and marketing of real estate, real estate 
broker commissions, as well as real estate broker access to lockboxes, 
that have been widely adopted by NAR's members resulting in a lessening 
of competition among real estate brokers to the detriment of American 
home buyers. These NAR rules, policies, and practices include:
    (a) Prohibiting NAR-affiliated multiple-listing services (``MLSs'') 
from disclosing to prospective buyers the amount of commission that the 
buyer broker will earn if the buyer purchases a home listed on the MLS;
    (b) allowing buyer brokers to misrepresent to buyers that a buyer 
broker's services are free;
    (c) enabling buyer brokers to filter MLS listings based on the 
level of buyer broker commissions offered and to exclude homes with 
lower commissions

[[Page 81490]]

from consideration by potential home buyers; and
    (d) limiting access to the lockboxes that provide licensed brokers 
with physical access to a home that is for sale to only brokers who are 
members of a NAR-affiliated MLS.
    2. These NAR rules, policies, and practices have been widely 
adopted and enforced by NAR-affiliated MLSs, and are, therefore, 
agreements among competing real estate brokers each of which reduce 
price competition among brokers and lead to lower quality service for 
American home buyers and sellers. Together, the agreements also have a 
cumulative anticompetitive effect. The agreements individually and 
collectively unreasonably restrain trade in violation of Section 1 of 
the Sherman Act, 15 U.S.C. 1, and should be enjoined.
    3. Accordingly, the United States seeks an order requiring NAR to 
cease its activities with respect to these rules, policies, and 
practices and providing additional relief.

II. Jurisdiction and Venue

    4. NAR is engaged in interstate commerce and in activities 
substantially affecting interstate commerce. NAR transacts business 
throughout the United States. NAR's membership includes brokers and 
agents that conduct business across the United States in the local 
areas in which each member operates. NAR's rules, policies, and 
practices govern the conduct of its members in all 50 states, including 
the conduct of all of NAR's individual member brokers and their 
affiliated agents and sales associates (``REALTORS[supreg]''). The 
anticompetitive rules, policies, and practices alleged in this 
Complaint violate the Sherman Act and affect home buyers and sellers 
located throughout the United States. The Court has subject matter 
jurisdiction under Section 4 of the Sherman Act, 15 U.S.C. 4, to 
prevent and restrain NAR from violating Section 1 of the Sherman Act, 
15 U.S.C. 1.
    5. NAR has consented to venue and personal jurisdiction in this 
District. Venue is also proper in this judicial district under 28 
U.S.C. 1391(b)(1).

III. The Defendant

    6. NAR is a trade association organized under the laws of Illinois 
with its principal place of business in Chicago. It is the leading 
national trade association of real estate brokers and agents. Among its 
members are licensed residential real estate brokers, including brokers 
who provide real estate brokerage services to home sellers (``listing 
brokers''), home buyers (``buyer brokers''), or both (collectively 
``residential brokers'').

IV. Industry Background

    7. Among other activities, NAR establishes and enforces rules, 
policies, and practices, that are adopted by NAR's 1,400+ local 
associations (also called ``Member Boards'') and their affiliated MLSs 
that govern the conduct of NAR's approximately 1.4 million-member 
REALTORS[supreg] who are engaged in residential real estate brokerages 
across the United States.
    8. The real estate brokerage business by its nature tends to be 
local. Most buyers and sellers prefer to work with a broker who is 
familiar with local market conditions. As a result, NAR's member 
brokers and agents compete with one another in local listing broker and 
buyer broker service markets to provide real estate brokerage services 
to home sellers and home buyers.
    9. MLSs are joint ventures among competing brokers to facilitate 
the publishing and sharing of information about homes for sale in a 
geographic area. The membership of an MLS is generally comprised of 
nearly all residential real estate brokers and their affiliated agents 
in an MLS's service area. The geographic coverage of the MLS serving an 
area normally establishes the geographic market in which competition 
among brokers occurs, although meaningful competition among brokers may 
also occur in smaller areas, like a particular area of a city, in which 
case that smaller area may also be a relevant geographic market.
    10. In each area an MLS serves, the MLS will include or ``list'' 
the vast majority of homes that are for sale through a residential real 
estate broker in that area. In most areas, the local MLS provides the 
most up-to-date, accurate, and comprehensive compilation of the area's 
home listings. Listing brokers will use the MLS to market sellers' 
properties to other broker and agent participants in the MLS and, 
through those other brokers and agents, to potential home buyers. By 
virtue of nearly industry-wide participation and control over important 
data, brokers offering MLSs possess and exercise market power in the 
markets for the provision of real estate brokerage services to home 
buyers and sellers in local markets throughout the country.
    11. NAR, through its Member Boards, controls a substantial number 
of the MLSs in the United States. NAR promulgates rules, policies, and 
practices governing the conduct of NAR-affiliated MLSs that are set 
forth annually in the Handbook on Multiple Listing Policy 
(``Handbook''). Under the terms of the Handbook, affiliated 
REALTOR[supreg] associations and MLSs ``must conform their governing 
documents to the mandatory MLS policies established by [NAR's] Board of 
Directors to ensure continued status as member boards and to ensure 
coverage under the master professional liability insurance program.'' 
National Association of REALTORS[supreg], Handbook on Multiple Listing 
Policy 2020 (32nd ed. 2020), at iii.
    12. NAR and its affiliated REALTOR[supreg] associations and MLSs 
enforce the Handbook's rules, policies, and practices as well as the 
rules, policies, and practices codified in NAR's Code of Ethics. NAR's 
Code of Ethics states that ``[a]ny Member Board which shall neglect or 
refuse to maintain and enforce the Code of Ethics with respect to the 
business activities of its members may, after due notice and 
opportunity for hearing, be expelled by the Board of Directors from 
membership in the National Association.'' National Association of 
REALTORS[supreg], Procedures for Consideration of Alleged Violations of 
Article IV, Section 2, Bylaws.

V. The Unlawful Agreements

    13. NAR's Handbook and NAR's Code of Ethics impose certain rules, 
policies, and practices on NAR-affiliated MLSs that affect competition 
for the provision of buyer broker services among those participating in 
a given MLS. In addition, some MLSs employ certain practices that are 
not directly required by a NAR rule or policy, but that similarly 
affect competition for the provision of buyer broker services among 
those participating in an MLS.
    14. These rules, policies, and practices include: Prohibiting an 
MLS from disclosing to prospective buyers the amount of commission that 
the buyer broker will earn if the buyer purchases a home listed on the 
MLS (``NAR's Commission Concealment Rules''); allowing buyer brokers to 
mislead buyers into thinking that buyer broker services are free 
(``NAR's Free-Service Rule''); enabling buyer brokers to filter MLS 
listings based on the level of buyer broker commissions offered and to 
exclude homes with lower commissions from consideration by potential 
home buyers (``NAR's Commission-Filter Rules and Practices''); and 
limiting access to lockboxes that provide licensed brokers physical 
access to a home that is for sale to only those real estate brokers who 
are members of a NAR-affiliated MLS (``NAR's Lockbox Policy'').
    15. NAR's and its affiliated MLSs' adoption and enforcement of 
these

[[Page 81491]]

rules, policies, and practices which are described in more detail 
below, reflect concerted action between horizontal competitors and 
constitute agreements among competing real estate brokers that reduce 
price competition among brokers and lead to higher prices and lower 
quality service for American home buyers and sellers.

A. NAR's Commission-Concealment Rules

    16. NAR's Commission-Concealment Rules recommend that MLSs prohibit 
disclosing to prospective buyers the total commissions offered to buyer 
brokers. Such concealment likely leads to higher prices and lower 
quality for buyer broker services. All or nearly all of NAR-affiliated 
MLSs have adopted a prohibition on disclosing commissions offered to 
buyer brokers. This means that while buyer brokers can see the 
commission that is being offered to them if their home buyer purchases 
a specific property--a commission that will ultimately be paid through 
the home purchase price that the home buyer, represented by the buyer 
broker, pays--MLSs conceal this fee from home buyers.
    17. The Commission-Concealment Rules are laid out in several places 
in NAR's Handbook, including Policy Statement 7.58, Policy Statement 
7.23, Policy Statement 7.3; Section IV.1.a of the Virtual Office 
websites Policy; and Sections 18.3.1 and 19.15 of the Model MLS Rules.
    18. NAR's Commission-Concealment Rules relieve buyer brokers from 
the necessity of competing against each other by offering rebates or 
offering to accept lower commissions. NAR's Commission-Concealment 
Rules also make home buyers both less likely and less able to negotiate 
a discount or rebate off the offered commission. Finally, NAR's 
Commission-Concealment Rules encourage and perpetuate the setting of 
persistently high commission offers by sellers and their listing 
agents. The result is higher prices for buyer broker services.
    19. Buyer brokers may, in fact, steer potential home buyers away 
from properties with low commission offers by filtering out, failing to 
show, or denigrating homes listed for sale that offer lower commissions 
than other properties in the area. When buyers cannot see commission 
offers, they cannot detect or resist this type of steering. Steering 
not only results in higher prices for buyer broker services, it also 
reduces the quality of the services that are rendered to the potential 
home buyer, making it less likely that the buyer will ultimately be 
matched with the optimal home choice. Fear of having buyers steered 
away from a property is also a strong deterrent to sellers who would 
otherwise offer lower buyer broker commissions, which further 
contributes to higher prices for buyer broker services.

B. NAR's Free-Service Rule

    20. Because commissions are offered by home sellers, and buyers do 
not pay their buyer brokers directly, it can be difficult for buyers to 
appreciate that they are nevertheless sharing with the seller the cost 
of the buyer broker's services. NAR's Free-Services Rule, which has 
been widely adopted by NAR-affiliated MLSs, compounds this problem by 
allowing buyer brokers to mislead buyers into thinking that the buyer 
broker's services are free when they are not. Under the NAR Code of 
Ethics, ``Unless they are receiving no compensation from any source for 
their time and service, REALTORS[supreg] may use the term `free' and 
similar terms in their advertising and in other representations only if 
they clearly and conspicuously disclose: (1) By whom they are being, or 
expect to be, paid; (2) the amount of the payment or anticipated 
payment; (3) any condition associated with the payment, offered product 
or service, and; (4) any other terms relating to their compensation.'' 
(See NAR Code of Ethics, Standard of Practice 12-1).
    21. NAR's Free-Services Rule allows brokers to mislead buyers by 
obscuring the fact that buyers have a stake in what their buyer brokers 
are being paid for their services. Buyer broker fees, though nominally 
paid by the home's seller, are ultimately paid out of the funds from 
the purchase price of the house. If buyers are told that buyer broker 
services are ``free,'' buyers are less likely to think to negotiate a 
lower buyer broker commission or to view buyer broker rebate offers as 
attractive. In these ways, NAR's Free-Services Rule likely leads to 
higher prices for services provided by buyer brokers.

C. NAR'S Commission-Filter Rules and Practices

    22. NAR's Commission-Filter Rules and Practices allow buyer brokers 
to filter MLS listings that will be shown to buyers based on the level 
of buyer broker commissions offered. Once this filtering is performed, 
some MLSs further permit buyer brokers to affirmatively choose not to 
show certain homes to potential home buyers if the buyer broker will 
make less money because of lower commissions. Homes may be filtered out 
in this manner even if they otherwise meet the buyer's home search 
criteria. For example, buyer brokers or agents may use an MLS's 
software to filter out any listing where a buyer broker will receive 
less than 2.5% commission on the home sale. The buyer broker would then 
provide to its home buyer customer only those listings where the buyer 
broker would be paid a 2.5% commission or more if the home sale is 
completed.
    23. According to Policy Statement 7.58 of NAR's Handbook, for 
example, ``Participants may select the IDX listings they choose to 
display based only on objective criteria including . . . cooperative 
compensation offered by listing brokers.'' Handbook, at 24 (Policy 
Statement 7.58); see also id. at 43 (VOW Policy) (``A VOW may exclude 
listings from display based only on objective criteria, including . . . 
cooperative compensation offered by listing broker, or whether the 
listing broker is a Realtor[supreg].'').
    24. NAR's Commission-Filter Rules and Practices, which have been 
widely adopted by NAR-affiliated MLSs, facilitates steering by helping 
buyer brokers conceal from potential home buyers any property listings 
offering lower buyer broker commissions. As alleged above, the practice 
of steering buyers away from homes with lower buyer broker commissions 
likely reduces the quality of buyer broker services and raises prices 
for buyer broker services, both at the expense of home buyers.

D. NAR's Lockbox Policy

    25. NAR and its members have also adopted a policy and practice 
that limits access to lockboxes to only those real estate brokers who 
are members of a NAR-affiliated MLS. Lockboxes hold the keys to a house 
to allow brokers and potential buyers to access homes for sale, with 
permission from the selling home owner, while continuing to keep the 
homes secure. Such lockboxes are accessed by a real estate broker using 
a numerical code or digital Bluetooth[supreg] `key' enabling the real 
estate broker to show buyers homes that are listed for sale.
    26. NAR and its affiliated MLSs have adopted a series of rules (set 
forth in the NAR Handbook, Policy Statement 7.31) that limit access to 
lockboxes only to those real estate brokers that are members of NAR and 
subscribe to the NAR-affiliated MLS. Licensed, but non-NAR-affiliated 
brokers are not allowed to access the lockboxes, thereby depriving 
those brokers the ability to show homes listed for sale. This policy 
and practice effectively deprives licensed real estate brokers that are 
not members of NAR from accessing properties for sale to show potential

[[Page 81492]]

home buyers, thereby lessening competition for buyer broker services.

VI. Violation of Section 1 of the Sherman Act

    27. NAR's real estate broker members are direct competitors for the 
provision of listing-broker and buyer broker services. Through the 
rules, policies, and practices alleged above and challenged in this 
action, NAR has coordinated and enforced anticompetitive agreements, 
which have likely contributed to reduced price competition among buyer 
brokers and a lower quality of buyer broker services for home buyers.
    28. When adopted by NAR Member Boards, the NAR rules, policies, and 
practices alleged above and challenged in this action are horizontal 
agreements that govern and enforce the conduct of competing MLS brokers 
and agents that deny prospective home buyers access to relevant 
information resulting in higher prices and lower quality for buyer 
broker services.
    29. The NAR rules, policies, and practices alleged above and 
challenged in this action have an anticompetitive effect in the 
relevant markets and unreasonably restrain trade in violation of 
Section 1 of the Sherman Act, 15 U.S.C. 1.

VII. Requested Relief

    30. The United States requests that this Court:
    (a) Adjudge that the NAR rules, policies, and practices challenged 
in this action are unreasonable restraints of trade and interstate 
commerce, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1;
    (b) enjoin and restrain NAR from promulgating, enforcing, or 
adhering to any rules, policies, or practices that unreasonably 
restrict competition;
    (c) permanently enjoin and restrain NAR from establishing the same 
or similar rules, policies, or practices as those challenged in this 
action in the future, except as prescribed by the Court;
    (d) award the United States such other relief as the Court may deem 
just and proper to redress and prevent recurrence of the alleged 
violations and to dissipate the anticompetitive effects of the illegal 
agreements entered into by NAR; and
    (e) award the United States the costs of this action.

Respectfully submitted,

COUNSEL FOR PLAINTIFF UNITED STATES

Dated: November 19, 2020
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Makan Delrahim (D.C. Bar #457795)

Assistant Attorney General, Antitrust Division.
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Michael F. Murray (D.C. Bar #1001680)

Deputy Assistant Attorney General.
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Owen M. Kendler

Chief.
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Lisa A. Scanlon

Assistant Chief, Media, Entertainment, and Professional Services 
Section, U.S. DOJ, Antitrust Division, 450 Fifth St. NW, Suite 4000, 
Washington, DC 20001, Tel. 202.305.8376, [email protected], 
[email protected].
/s/--------------------------------------------------------------------

Samer M. Musallam* (DC Bar # 986077)

U.S. Department of Justice, Antitrust Division, 950 Pennsylvania 
Ave. NW, Suite 3110, Washington, DC 20530, Tel. 202.598.2990, Fax: 
202.514.9033, [email protected].
Attorneys for the United States
* Lead Attorney to be Noticed

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. National Association of 
Realtors[supreg], Defendant.

Case No. 1:20-cv-3356-TJK

[Proposed] Final Judgment

    Whereas, Plaintiff, United States of America, filed its Complaint 
on November 19, 2020, alleging that Defendant, National Association of 
REALTORS[supreg], violated Section 1 of the Sherman Act, 15 U.S.C. 1,
    And whereas, the United States and Defendant have consented to the 
entry of this Final Judgment without the taking of testimony, without 
trial or adjudication of any issue of fact or law, without this Final 
Judgment constituting any evidence against or admission by any party 
regarding any issue of fact or law, and without Defendant admitting 
liability, wrongdoing, or the truth of any allegations in the 
Complaint;
    And whereas, Defendant agrees to undertake certain actions and 
refrain from certain conduct for the purpose of remedying the 
anticompetitive effects alleged in the Complaint;
    Now therefore, 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 in this Final Judgment:
    A. ``NAR'' and ``Defendant'' mean the National Association of 
REALTORS[supreg], a non-profit trade association with its headquarters 
in Chicago, Illinois, its successors and assigns, and its subsidiaries, 
divisions, groups, affiliates, partnerships, and joint ventures, and 
their directors, officers, managers, agents, and employees.
    B. ``Agreement'' means any agreement, understanding, pact, 
contract, or arrangement, formal or informal, oral or written, between 
two or more Persons.
    C. ``Broker'' means a Person licensed by a state to provide 
services to a buyer (``buyer Broker'') or seller (``listing Broker'') 
in connection with a real estate transaction. The term includes any 
Person who possesses a Broker's license and any agent or sales 
associate who is affiliated with such a Broker.
    D. ``Client'' means the person(s) with whom a REALTOR[supreg] is 
contracted with or otherwise has an agency or legally recognized non-
agency relationship with respect to the purchase or sale of real 
property.
    E. ``Management'' means NAR's President, President Elect, First 
Vice President, Treasurer, VP of Advocacy, VP of Association Affairs, 
Chief Executive Officer, and Executive Committee.
    F. ``Member Board'' means any state or local Board of 
REALTORS[supreg] or Association of REALTORS[supreg], including any 
city, county, inter-county, or inter-state Board or Association, and 
any multiple listing service owned by, or affiliated with, any such 
Board of REALTORS[supreg] or Association of REALTORS[supreg].
    G. ``MLS Participant'' means a member or user of, a participant in, 
or a subscriber to an MLS.
    H. ``MLS'' means a multiple-listing service owned or controlled by 
a Member Board.
    I. ``Person'' means any natural person, trade association, 
corporation, company, partnership, joint venture, firm, association, 
proprietorship, agency, board, authority, commission, office, or other 
business or legal entity, whether private or governmental.
    J. ``Rule'' means any final rule, model rule, ethical rule, bylaw, 
policy, definition, standard, or guideline, and any interpretation of 
any Rule issued or approved by NAR.

III. Applicability

    A. This Final Judgment applies to NAR, as defined above, and all 
other Persons, including all Member Boards and MLS Participants, in 
active concert or participation with NAR who receive actual notice of 
this Final Judgment. A

[[Page 81493]]

Member Board or MLS Participant shall not be deemed to be in active 
concert with NAR solely as a consequence of its receipt of actual 
notice of this Final Judgment or its affiliation with or membership in 
NAR.

IV. Prohibited Conduct

    NAR and its Member Boards must not adopt, maintain, or enforce any 
Rule, or enter into or enforce any Agreement or practice, that directly 
or indirectly:
    1. Prohibits, discourages, or recommends against an MLS or MLS 
Participant publishing or displaying to consumers any MLS database 
field specifying the compensation offered to other MLS Participants;
    2. permits or requires MLS Participants, including buyer Brokers, 
to represent or suggest that their services are free or available to a 
Client at no cost to the Client;
    3. permits or enables MLS Participants to filter, suppress, hide, 
or not display or distribute MLS listings based on the level of 
compensation offered to the buyer Broker or the name of the brokerage 
or agent; or
    4. prohibits, discourages, or recommends against the eligibility of 
any licensed real estate agent or agent of a Broker, from accessing, 
with seller approval, the lockboxes of those properties listed on an 
MLS.

V. Required Conduct

    A. By not later than 45 calendar days after entry of the 
Stipulation and Order in this matter, NAR must submit to the United 
States, for the United States' approval in its sole discretion, any 
Rule changes that NAR proposes to adopt to comply with Paragraphs V.C-I 
of this Final Judgment.
    B. By not later than thirty calendar days after entry of the 
Stipulation and Order in this matter, NAR must furnish notice of this 
action to all its Member Boards and MLS Participants in a form to be 
approved by the United States in its sole discretion.
    C. By not later than five business days after the later of the 
entry of this Final Judgment or the United States' approval of the 
Rules proposed in Paragraph V.A of this Final Judgment, NAR must adopt 
one or more Rules, the content of which must first have been approved 
in writing by the United States in its sole discretion, that repeal any 
Rule that prohibits, discourages, or recommends against an MLS or MLS 
Participant publishing or displaying to consumers any MLS database 
field specifying compensation offered to other MLS Participants.
    D. By not later than five business days after the later of the 
entry of this Final Judgment or the United States' approval of the 
Rules proposed in Paragraph V.A of this Final Judgment, NAR must adopt 
one or more Rules, the content of which must first have been approved 
in writing by the United States in its sole discretion that require all 
Member Boards and MLSs to repeal any Rule that prohibits, discourages, 
or recommends against an MLS or MLS Participant publishing or 
displaying to consumers any MLS database field specifying compensation 
offered to other MLS Participants.
    E. By not later than five business days after the later of the 
entry of this Final Judgment or the United States' approval of the 
Rules proposed in Paragraph V.A of this Final Judgment, NAR must adopt 
one or more Rules, the content of which must first have been approved 
in writing by the United States in its sole discretion, that require 
all MLS Participants to provide to Clients information about the amount 
of compensation offered to other MLS Participants.
    F. By not later than five business days after the later of the 
entry of this Final Judgment or the United States' approval of the 
Rules proposed in Paragraph V.A of this Final Judgment, NAR must adopt 
one or more Rules, the content of which must first have been approved 
in writing by the United States in its sole discretion, that:
    1. Repeal any Rule that permits all MLSs and MLS Participants, 
including buyer Brokers, to represent that their services are free or 
available at no cost to their Clients;
    2. require all Member Boards and MLSs to repeal any Rule that 
permits MLSs and MLS Participants, including buyer Brokers, to 
represent that their services are free or available at no cost to their 
Clients; and
    3. prohibit all MLSs and MLS Participants, including buyer Brokers, 
from representing that their services are free or available at no cost 
to their Clients.
    G. By not later than five business days after the later of the 
entry of this Final Judgment or the United States' approval of the 
Rules proposed in Paragraph V.A of this Final Judgment, NAR must adopt 
one or more Rules, the content of which must first have been approved 
in writing by the United States in its sole discretion, that require 
all Member Boards and MLSs to:
    1. Prohibit MLS Participants from filtering or restricting MLS 
listings that are searchable by or displayed to consumers based on the 
level of compensation offered to the buyer Broker or the name of the 
brokerage or agent; and
    2. repeal any Rule that permits or enables MLS Participants to 
filter or restrict MLS listings that are searchable by or displayed to 
consumers based on the level of compensation offered to the buyer 
Broker, or by the name of the brokerage or agent.
    H. By not later than five business days after the later of the 
entry of this Final Judgment or the United States' approval of the 
Rules proposed in Paragraph V.A of this Final Judgment, NAR must adopt 
one or more Rules, the content of which must first have been approved 
in writing by the United States in its sole discretion, that require 
all Member Boards and MLSs to allow any licensed real estate agent or 
agent of a Broker, to access, with seller approval, the lockboxes of 
those properties listed on an MLS.
    I. By not later than 10 business days after the later of the entry 
of this Final Judgment or the United States' approval of the Rules 
proposed in Paragraph V.A of this Final Judgment, NAR must furnish 
notice of this action to all its Member Boards and MLS Participants 
through (i) a direct communication, in a form to be approved by the 
United States in its sole discretion, that must contain this Final 
Judgment; the new Rule or Rules NAR devises in compliance with 
Paragraphs V.E., V.H., and V.I; and the Competitive Impact Statement; 
and (ii) the creation and maintenance of a page on NAR's website, that 
must be posted for no less than one year after the date of entry of 
this Final Judgment, and must contain links to this Final Judgment; the 
new Rule or Rules NAR devises in compliance with Section V; the 
Competitive Impact Statement; and the Complaint in this matter.
    J. By not later than 30 calendar days after the later of the entry 
of this Final Judgment or the United States' approval of the Rules 
proposed in Paragraph V.A of this Final Judgment, NAR must publish to 
all Member Boards, in a manner subject to approval by the United States 
in its sole discretion, this Final Judgment and the NAR Rules adopted 
in compliance with Section V.
    K. By not later than 60 calendar days after the later of the entry 
of this Final Judgment or the United States' approval of the Rules 
proposed in Paragraph V.A of this Final Judgment, NAR must require all 
Member Boards to publish, in a manner subject to approval by the United 
States in its sole discretion, to all MLS Participants this Final 
Judgment and the NAR Rules adopted in compliance with Section V.
    L. The United States, in its sole discretion, may agree to one or 
more

[[Page 81494]]

extensions of each of the time periods set forth in this Section V.

VI. Antitrust Compliance

    A. By not later than 30 calendar days after entry of the 
Stipulation and Order in this matter, Defendant must (i) appoint an 
Antitrust Compliance Officer and (ii) identify to the United States the 
Antitrust Compliance Officer's name, business address, telephone 
number, and email address. Within thirty days after the Antitrust 
Compliance Officer position becomes vacant, the Defendant must (i) 
appoint a replacement Antitrust Compliance Officer and (ii) must 
identify to the United States the replacement Antitrust Compliance 
Officer's name, business address, telephone number, and email address. 
The Defendant's initial appointment and replacement of an Antitrust 
Compliance Officer is subject to the approval of the United States in 
its sole discretion.
    B. The Antitrust Compliance Officer must:
    1. By not later than 30 calendar days after entry of this Final 
Judgment, furnish to all of Management a copy of this Final Judgment, 
the Competitive Impact Statement filed by the United States in 
connection with this matter, and a cover letter in a form attached as 
Exhibit 1;
    2. by not later than 30 calendar days after entry of this Final 
Judgment, in a form and manner to be approved by the United States in 
its sole discretion, provide Management and employees with reasonable 
notice of the meaning and requirements of this Final Judgment;
    3. annually brief Management on the meaning and requirements of 
this Final Judgment and the antitrust laws;
    4. brief any person who succeeds a Person in any Management 
position on the meaning and requirements of this Final Judgment by not 
later than 30 calendar days after such succession;
    5. obtain from all members of Management, by not later than 30 
calendar days after that Person's receipt of this Final Judgment, a 
certification that the Person (i) has read and, to the best of his or 
her ability, understands and agrees to abide by the terms of this Final 
Judgment; (ii) has reported any violation of this Final Judgment to 
Defendant or is not aware of any violation of this Final Judgment that 
has not been reported to the Defendant; and (iii) understands that his 
or her failure to comply with this Final Judgment may result in an 
enforcement action for civil or criminal contempt of court against the 
Defendant and any other Person bound by the Final Judgment who violates 
this Final Judgment;
    6. maintain a record of certifications received pursuant to this 
Section and a copy of each certification;
    7. annually communicate to Management and employees that they must 
disclose to the Antitrust Compliance Officer information concerning any 
potential violation of this Final Judgment or the antitrust laws and 
that any such disclosure will be without reprisal by Defendant; and
    8. by not later than 90 calendar days after entry of this Final 
Judgment and annually thereafter, the Antitrust Compliance Officer must 
file reports with the United States describing that Defendant has met 
its obligations under this Paragraph.
    C. Immediately upon Management's or the Antitrust Compliance 
Officer's learning of any violation or potential violation of any of 
the terms of this Final Judgment, NAR must take appropriate action to 
investigate and, in the event of a potential violation, must cease or 
modify the activity so as to comply with this Final Judgment. NAR must 
maintain all documents related to any potential violation of this Final 
Judgment for the term of this Final Judgment.
    D. Within 30 calendar days of Management's or the Antitrust 
Compliance Officer's learning of any potential violation of any of the 
terms of this Final Judgment, Defendant must file with the United 
States a statement describing the potential violation, including a 
description of (1) any communications constituting the potential 
violation, the date and place of the communication, the persons 
involved in the communication, and the subject matter of the 
communication, and (2) all steps taken by the Antitrust Compliance 
Officer or Management to remedy the potential violation.
    E. Defendant must have its CEO or CFO, and its General Counsel 
certify in writing to the United States, no later than 60 calendar days 
after the Final Judgement is entered and then annually on the 
anniversary of the date of the entry of this Final Judgment, that the 
Defendant has complied with the provisions of this Final Judgment.
    F. The United States, in its sole discretion, may agree to one or 
more extensions of each of the time periods set forth in this Section 
VI.

VII. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment or of related orders such as the Stipulation and Order 
or of determining whether this Final Judgment should be modified or 
vacated, upon written request of an authorized representative of the 
Assistant Attorney General for the Antitrust Division, and reasonable 
notice to Defendant, Defendant must permit, from time to time and 
subject to legally recognized privileges, authorized representatives, 
including agents retained by the United States:
    1. To have access during Defendant's office hours to inspect and 
copy, or at the option of the United States, to require Defendant to 
provide electronic copies of, all books, ledgers, accounts, records, 
data, and documents in the possession, custody, or control of 
Defendant, relating to any matters contained in this Final Judgment; 
and
    2. to interview, either informally or on the record, Defendant's 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews must be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by Defendant.
    B. Upon the written request of an authorized representative of the 
Assistant Attorney General for the Antitrust Division, Defendant must 
submit written reports or respond to written interrogatories, under 
oath if requested, relating to any of the matters contained in this 
Final Judgment.
    C. No information or documents obtained pursuant to this Section 
VII may 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, for the purpose of securing 
compliance with this Final Judgment, or as otherwise required by law.
    D. If a third party requests disclosure of information under the 
Freedom of Information Act, 5 U.S.C. 552, the Antitrust Division will 
act in accordance with that statute, and the Department of Justice 
regulations at 28 CFR part 16, including the provision on confidential 
commercial information, at 28 CFR 16.7. Defendant submitting 
information to the Antitrust Division should designate the confidential 
commercial information portions of all applicable documents and 
information under 28 CFR 16.7. Designations of confidentiality expire 
ten years after submission, ``unless the submitter requests and 
provides justification for a longer designation period.'' See 28 CFR 
16.7(b).
    E. If at the time that Defendant furnishes information or documents 
to the United States pursuant to this

[[Page 81495]]

Section VII, Defendant represents and identifies in writing information 
or documents to which a claim of protection may be asserted under Rule 
26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendant 
marks each pertinent page of such material, ``Subject to claim of 
protection under Rule 26(c)(1)(G) of the Federal Rules of Civil 
Procedure,'' the United States must give Defendant ten calendar days' 
notice before divulging such material in any legal proceeding, other 
than a grand jury proceeding.

VIII. Retention of Jurisdiction

    The Court retains jurisdiction to enable any party to this Final 
Judgment to apply to the Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

IX. Enforcement of Final Judgment

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. Defendant agrees that in a civil contempt 
action, a motion to show cause, or a similar action brought by the 
United States regarding an alleged violation of this Final Judgment, 
the United States may establish a violation of this Final Judgment and 
the appropriateness of a remedy therefor by a preponderance of the 
evidence, and Defendant waives any argument that a different standard 
of proof should apply.
    B. This Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore the 
competition the United States alleged was harmed by the challenged 
conduct. Defendant agrees that it may be held in contempt of, and that 
the Court may enforce, any provision of this Final Judgment that, as 
interpreted by the Court in light of these procompetitive principles 
and applying ordinary tools of interpretation, is stated specifically 
and in reasonable detail, whether or not it is clear and unambiguous on 
its face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In an enforcement proceeding in which the Court finds that 
Defendant has violated this Final Judgment, the United States may apply 
to the Court for a one-time extension of this Final Judgment, together 
with other relief that may be appropriate. In connection with any 
successful effort by the United States to enforce this Final Judgment 
against Defendant, whether litigated or resolved before litigation, 
Defendant agrees to reimburse the United States for the fees and 
expenses of its attorneys, as well as any other costs, including 
experts' fees, incurred in connection with that enforcement effort, 
including in the investigation of the potential violation.
    D. For a period of four years following the expiration or 
termination of this Final Judgment, if the United States has evidence 
that Defendant violated this Final Judgment before it expired, the 
United States may file an action against Defendant in this Court 
requesting that the Court order: (1) Defendant to comply with the terms 
of this Final Judgment for an additional term of at least four years 
following the filing of the enforcement action, (2) all appropriate 
contempt remedies, (3) any additional relief needed to ensure the 
Defendant complies with the terms of this Final Judgment, and (4) fees 
or expenses as called for in this Section IX.

X. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire 7 years from the date of its entry, except that after 5 years 
from the date of its entry, this Final Judgment may be terminated upon 
notice by the United States to the Court and Defendant that the 
continuation of this Final Judgment no longer is necessary or in the 
public interest.

XI. United States' Reservation of Rights

    Nothing in this Final Judgment shall limit the right of the United 
States to investigate and bring actions to prevent or restrain 
violations of the antitrust laws concerning any Rule or practice 
adopted or enforced by NAR or any of its Member Boards.

XII. Notice

    For purposes of this Final Judgment, any notice or other 
communication required to be provided to the United States must be sent 
to the person at the address set forth below (or such other address as 
the United States may specify in writing to Defendant): Chief, Office 
of Decree Enforcement and Compliance, Antitrust Division, U.S. 
Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 
20530.

XIII. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16, including by making available to the 
public copies of this Final Judgment and the Competitive Impact 
Statement, any public comments thereon, and any response to comments by 
the United States. Based upon the record before the Court, which 
includes the Competitive Impact Statement and any comments and response 
to comments filed with the Court, entry of this Final Judgment is in 
the public interest.

[Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16]
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United States District Judge

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. National Association of 
Realtors[supreg], Defendant.

Case No. 1:20-cv-03356-TJK

Competitive Impact Statement

    Plaintiff United States of America (``United States''), pursuant to 
Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. 
Sec. 1A16(b)-(h) (``APPA'' or ``Tunney Act''), 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 Proceeding

    On November 19, 2020, the United States filed a civil antitrust 
Complaint against Defendant National Association of REALTORS[supreg] 
(``NAR'') alleging that a series of rules, policies, and practices 
promulgated by NAR resulted in a lessening of competition among real 
estate brokers and agents to the detriment of American home buyers in 
violation of Section 1 of the Sherman Act, 15 U.S.C. 1. [Dkt. No. 1.]
    The Complaint alleges that certain NAR rules, policies, and 
practices have been widely adopted by NAR's members, including the 
multiple listing services (``MLSs'') affiliated with NAR that 
facilitate the publishing and sharing of information about local homes 
for sale, resulting in a lessening of competition among real estate 
brokers and agents to the detriment of American home buyers. These NAR 
rules, policies, and practices include those that:
    a. Prohibit MLSs affiliated with NAR from disclosing to potential 
home buyers the amount of commission that the buyer's real estate 
broker or agent will earn if the buyer purchases a home listed on the 
MLS;
    b. allow brokers for home sellers (``buyer brokers'') to 
misrepresent to potential home buyers that a buyer broker's services 
are free;

[[Page 81496]]

    c. enable buyer brokers to filter the listings of homes for sale 
via an MLS based on the level of buyer broker commissions offered and 
exclude homes with lower commissions from consideration by potential 
home buyers; and
    d. limit access to lockboxes, which provide physical access to 
homes for sale, only to real estate brokers or agents working with a 
NAR-affiliated MLS.
    At the same time the Complaint was filed, the United States filed a 
Stipulation and Order and proposed Final Judgment, which are designed 
to remedy the anticompetitive effects alleged in the Complaint. [Dkt. 
No. 4.] On November 20, 2020, the Court entered the Stipulation and 
Order. [Dkt. No. 5.]
    Under the proposed Final Judgment, NAR is required to repeal, 
eliminate, or modify its rules, practices, and policies that the 
Division alleges in the Complaint violate the Sherman Act. 
Specifically, NAR and NAR-affiliated MLSs must not (1) adopt, maintain, 
or enforce any rule, practice, or policy or (2) enter into any 
agreement or practice that directly or indirectly:
    e. Prohibits, discourages, or recommends against an MLS or real 
estate broker or agent working with a NAR-affiliated MLS (``MLS 
Participant \2\ or REALTOR[supreg]'') publishing or displaying to 
consumers any MLS data specifying the compensation offered to other MLS 
Participants, such as buyer brokers;
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    \2\ Under the proposed Final Judgment, an ``MLS Participant'' is 
defined as ``a member or user of, a participant in, or a subscriber 
to an MLS.'' (See Proposed Final Judgment, Section II--Definitions.)
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    f. permits or requires MLS Participants, including buyer brokers, 
to represent or suggest that their services are free or available to a 
home buyer at no cost to the home buyer;
    g. permits or enables MLS Participants to filter, suppress, hide, 
or not display or distribute MLS listings based on the level of 
compensation offered to the buyer broker or the name of the brokerage 
or brokers or agents; or
    h. prohibits, discourages, or recommends against allowing any 
licensed real estate broker or agent to access, with approval from the 
home seller, the lockboxes of properties listed on an MLS.
    As discussed in further detail below, the proposed Final Judgment 
requires NAR to take affirmative steps to remedy the competitive harm 
alleged in the Complaint. The Stipulation and Order requires NAR to 
abide by and comply with the provisions of the proposed Final Judgment 
until the proposed Final Judgment is entered by the Court or until 
expiration of time for all appeals of any Court ruling declining entry 
of the proposed Final Judgment. [Dkt. No. 5.]
    The United States and NAR have stipulated that the proposed Final 
Judgment may be entered after compliance with the APPA. Entry of the 
proposed Final Judgment will terminate this action, except that the 
Court will retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof. [Dkt. No. 4-2.]

II. Description of Events Giving Rise to the Alleged Violation

A. The Defendant and Its Members

    Defendant NAR is a trade association organized under the laws of 
Illinois with its principal place of business in Chicago. NAR is the 
leading national trade association of real estate brokers and agents. 
Among NAR's members are licensed residential real estate brokers, 
including brokers who provide real estate brokerage services to home 
sellers, home buyers, or both.
    Among other activities, NAR establishes and enforces rules, 
policies, and practices that are then adopted by NAR's more than 1,400 
local associations (also known as the ``Member Boards'') and their 
affiliated MLSs. These rules, policies, and practices govern the 
conduct of the approximately 1.4 million MLS Participants or 
REALTORS[supreg] affiliated with NAR who are engaged in residential 
real estate brokerages across the United States.
    An MLS is a joint venture among competing brokers to facilitate the 
publishing and sharing of information about homes for sale in a 
geographic area. The membership of an MLS is generally comprised of 
nearly all residential real estate brokers and their affiliated agents 
in an MLS's service area. In each area an MLS serves, the MLS will 
include or ``list'' the vast majority of homes that are for sale 
through a residential real estate broker in that area. In most areas, 
the local MLS provides the most up-to-date, accurate, and comprehensive 
compilation of the area's home listings. Listing brokers use the MLS to 
market sellers' properties to other broker and agent participants in 
the MLS and, through those other brokers and agents, to potential home 
buyers. By virtue of nearly industry-wide participation and control 
over important data, MLSs possess and exercise market power in the 
markets for the provision of real estate brokerage services to home 
buyers and sellers in local markets throughout the country.
    As alleged in the Complaint, NAR's member brokers and agents 
compete with one another in local listing broker and buyer service 
markets to provide real estate brokerage services to home sellers and 
home buyers. The geographic coverage of the MLS serving an area 
normally establishes the geographic market in which competition among 
brokers occurs, although meaningful competition among brokers may also 
occur in smaller areas, like a particular area of a city, in which case 
that smaller area may also be a relevant geographic market.
    NAR, through its Member Boards, controls a substantial number of 
the MLSs in the United States. NAR promulgates rules, policies, and 
practices governing the conduct of NAR-affiliated MLSs that are set 
forth annually in the Handbook on Multiple Listing Policy 
(``Handbook''). Under the terms of the Handbook, affiliated 
REALTOR[supreg] associations and MLSs ``must conform their governing 
documents to the mandatory MLS policies established by [NAR's] Board of 
Directors to ensure continued status as member boards and to ensure 
coverage under the master professional liability insurance program.'' 
(National Association of REALTORS[supreg], Handbook on Multiple Listing 
Policy 2020 (32nd ed. 2020), at iii).\3\
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    \3\ Available at cdnr.nar.realtor/sites/default/files/document/
NAR-HMLP-2020-v2.pdf. (Last visited on 12/2/2020).
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    NAR and its affiliated REALTOR[supreg] associations and MLSs 
enforce the Handbook's rules, policies, and practices as well as the 
rules, policies, and practices set forth in NAR's Code of Ethics. NAR's 
Code of Ethics states that ``[a]ny Member Board which shall neglect or 
refuse to maintain and enforce the Code of Ethics with respect to the 
business activities of its members may, after due notice and 
opportunity for hearing, be expelled by the Board of Directors from 
membership'' in NAR. (National Association of REALTORS[supreg], 
Procedures for Consideration of Alleged Violations of Article IV, 
Section 2, Bylaws).\4\
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    \4\ Available at https://www.nar.realtor/about-nar/governing-
documents/code-of-ethics/duty-to-adopt-and-enforce-the-code-of-
ethics#:~:text=Any%20Member%20Board%20which%20shall, 
membership%20in%20the%20National%20Association. (Last visited on 12/
2/2020).
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B. Description of the Challenged Rules, Policies, and Practices and 
Their Anticompetitive Effects

    NAR's Handbook and NAR's Code of Ethics impose certain rules, 
policies,

[[Page 81497]]

and practices on NAR-affiliated MLSs that affect competition for the 
provision of buyer broker services among those participating in a given 
MLS. In addition, some MLSs employ certain practices that are not 
directly required by a NAR rule or policy, but that similarly affect 
competition for the provision of buyer broker services among those 
participating in an MLS.
    These rules, policies, and practices, discussed in more detail 
below, include: prohibiting an MLS from disclosing to potential home 
buyers the amount of commission that the buyer broker will earn if the 
buyer purchases a home listed on the MLS (``NAR's Commission 
Concealment Rules''); allowing buyer brokers to mislead potential home 
buyers into thinking that buyer broker services are free (``NAR's Free-
Service Rule''); enabling buyer brokers to filter MLS listings based on 
the level of buyer broker commissions offered and to exclude homes with 
lower commissions from consideration by potential home buyers (``NAR's 
Commission-Filter Rules and Practices''); and limiting accesses to 
lockboxes that provide licensed brokers physical access to a home that 
is for sale to only those real estate brokers who are members of a NAR-
affiliated MLS (``NAR's Lockbox Policy'').
    These rules, policies, and practices constitute agreements that 
reduce price competition among brokers and lead to lower quality 
service for American home buyers and sellers.
1. NAR's Commission-Concealment Rules
    NAR's Commission-Concealment Rules recommend that MLSs prohibit 
disclosing to potential home buyers the total commission offered to 
buyer brokers. All or nearly all of NAR-affiliated MLSs have adopted a 
prohibition on disclosing commissions offered to buyer brokers. This 
means that while buyer brokers can see the commission that is being 
offered to them if their home buyer purchases a specific property--a 
commission that will ultimately be paid through the home purchase price 
that the home buyer, represented by the buyer broker, pays--MLSs 
conceal this fee from potential home buyers.
    NAR's Commission-Concealment Rules lessen competition among buyer 
brokers by reducing their incentives to compete against each other by 
offering rebates. These rules also make potential home buyers both less 
likely and less able to negotiate a rebate off the offered commission. 
NAR's Commission-Concealment Rules encourage and perpetuate the setting 
of persistently high commission offers by sellers and their listing 
agents. This contributes to higher prices for buyer broker services.
    As alleged in the Complaint, NAR's Commission-Concealment Rules can 
also lead to other anticompetitive effects. Because of the Commission-
Concealment Rules, buyer brokers may steer potential home buyers away 
from properties with low commission offers by filtering out, failing to 
show, or denigrating homes listed for sale that offer lower commissions 
than other properties in the area. When potential home buyers can't see 
commission offers, they can't detect or resist this type of steering. 
Steering not only results in higher prices for buyer broker services, 
it also reduces the quality of the services that are rendered to the 
potential home buyer, making it less likely that the buyer will 
ultimately be matched with the optimal home choice. Fear of having 
potential home buyers steered away from a property is a strong 
deterrent to sellers who would otherwise offer lower buyer broker 
commissions, which further contributes to higher prices for buyer 
broker services.
2. NAR's Free-Service Rule
    Because commissions are offered by home sellers--and home buyers do 
not pay their buyer brokers directly--it can be difficult for buyers to 
appreciate that they are nevertheless sharing with the seller the cost 
of the buyer broker's services. NAR's Free-Service Rule, which has been 
widely adopted by NAR-affiliated MLSs, compounds this problem by 
allowing buyer brokers to mislead buyers into thinking the buyer 
broker's services are free and hide the fact that buyers have a stake 
in what their buyer brokers are being paid. Under NAR's Code of Ethics, 
``Unless they are receiving no compensation from any source for their 
time and service, REALTORS[supreg] may use the term `free' and similar 
terms in their advertising and in other representations only if they 
clearly and conspicuously disclose: (1) By whom they are being, or 
expect to be, paid; (2) the amount of the payment or anticipated 
payment; (3) any condition associated with the payment, offered product 
or service, and; (4) any other terms relating to their compensation.'' 
(NAR Code of Ethics, Standard of Practice 12-1.)\5\
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    \5\ Available at https://www.nar.realtor/about-nar/governing-documents/code-of-ethics/2021-code-of-ethics-standards-of-practice. 
(Last visited on 12/2/2020).
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    Buyer broker fees, though nominally paid by the home's seller, are 
ultimately paid out of the funds from the purchase price of the house. 
If potential home buyers are told that buyer broker services are 
``free,'' buyers are less likely to think to negotiate a lower buyer-
broker commission or to view the buyer broker rebate offers as 
attractive. In these ways, NAR's Fee-Service Rule likely leads to 
higher prices for services provided by buyer brokers.
3. NAR's Commission-Filter Rules and Practices
    NAR's Commission-Filter Rules and Practices allow buyer brokers to 
filter MLS listings that will be shown to potential home buyers based 
on the level of buyer broker commissions offered. Once this filtering 
is performed, some MLSs further permit buyer brokers to affirmatively 
choose not to show certain homes to potential home buyers if the buyer 
broker will make less money because of lower commissions. Homes may be 
filtered out in this manner even if they otherwise meet the buyer's 
home search criteria. For example, buyer brokers or agents may use an 
MLS's software to filter out any listing where buyer brokers will 
receive less than 2.5% commission on the home sale. The buyer broker 
would then provide to his home buyer customer only those listings where 
the buyer broker would be paid a 2.5% commission or more if the home 
sale is completed.
    According to Policy Statement 7.58 of NAR's Handbook, for example, 
``[p]articipants may select the IDX listings they choose to display 
based only on objective criteria including . . . cooperative 
compensation offered by listing brokers.'' (Handbook, at 24, Policy 
Statement 7.58; see NAR's VOW Policy, id. at 43 (``A VOW may exclude 
listings from display based only on objective criteria, including . . . 
cooperative compensation offered by the listing broker, or whether the 
listing broker is a Realtor[supreg].'')) \6\
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    \6\ Available at cdnr.nar.realtor/sites/default/files/document/
NAR-HMLP-2020-v2.pdf. (Last visited on 12/2/2020).
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    NAR's Commission-Filter Rules and Practices, which have been widely 
adopted by NAR-affiliated MLSs, are anticompetitive because they 
facilitate steering by helping buyer brokers conceal from potential 
home buyers any property listings offering lower buyer broker 
commissions. The practice of steering buyers away from homes with lower 
buyer broker commissions likely reduces the quality of buyer broker 
services and raises prices for buyer broker services, both at the 
expense of buyers.

[[Page 81498]]

4. NAR's Lockbox Policy
    Lockboxes hold the keys to a house to allow brokers and potential 
home buyers to access homes for sale, with permission from the selling 
home owner, while continuing to keep the homes secure. Such lockboxes 
are typically accessed by a real estate broker using a numerical code 
or digital Bluetooth[supreg] ``key'' enabling the real estate broker to 
show buyer homes that are listed for sale.
    NAR and its affiliated MLSs have adopted a policy and practice that 
limits access to lockboxes to only those real estate brokers who are 
members of NAR and subscribe to the NAR-affiliated MLS. (See Handbook, 
Policy Statement 7.31).\7\ Licensed, but non-NAR-affiliated brokers are 
not allowed to access the lockboxes. Because only real estate brokers 
that are members of NAR and subscribe to the NAR-affiliated MLS are 
permitted access to lockboxes, this policy and practice effectively 
deprives licensed real estate brokers that are not members of NAR from 
accessing properties for sale to show potential home buyers. This 
lessens competition for buyer broker services as real estate brokers 
that are not members of NAR cannot access lockboxes and show properties 
to their clients.
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    \7\ Available at cdnr.nar.realtor/sites/default/files/document/
NAR-HMLP-2020-v2.pdf. (Last visited on 12/2/2020).
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C. The Challenged Rules, Policies, and Practices Violate the Antitrust 
Laws

    NAR's challenged rules, policies and practices violate Section 1 of 
the Sherman Act, 15 U.S.C. 1, which prohibits unreasonable restraints 
on competition. NAR's real estate broker members are direct competitors 
for the provision of listing broker and buyer broker services. NAR and 
its affiliated MLSs have widely adopted the challenged rules, policies, 
and practices. Adoption by NAR and its affiliated MLSs of these rules, 
policies, and practices reflects concerted action between horizontal 
competitors and constitutes agreements among competing real estate 
brokers that reduce price competition among brokers and lead to higher 
prices and a lower quality of service for American home buyers. See, 
e.g., Realcomp II, Ltd. v. FTC, 635 F.3d 815, 828-29 (6th Cir. 2011) 
(holding that association of real-estate brokers was a contract, 
combination, or conspiracy with respect to allegedly anticompetitive 
policies).
    When adopted by NAR Member Boards, the NAR rules, policies, and 
practices alleged above and challenged in this action are horizontal 
agreements that govern and enforce the conduct of competing MLS brokers 
and agents that deny potential home buyers access to relevant 
information resulting in higher prices and lower quality for buyer 
broker services.
    The NAR rules, policies, and practices challenged in this action 
have anticompetitive effects in the relevant market for local listing 
broker and buyer broker services in the United States that outweigh any 
purported pro-competitive benefits. Accordingly, they unreasonably 
restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. 
1.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment prohibits NAR and its Member Boards 
from undertaking certain conduct and affirmatively requires NAR to take 
certain actions to remedy the antitrust violations alleged in the 
Complaint.

A. Prohibited and Required Conduct

1. Commission-Concealment Rules
    Paragraph IV.1 of the proposed Final Judgment prohibits NAR and its 
Member Boards from adopting, maintaining, or enforcing any rule, or 
from entering into or enforcing any agreement or practice, that 
directly or indirectly ``prohibits, discourages, or recommends against 
an MLS or MLS Participant publishing or displaying to consumers any MLS 
data specifying the compensation offered to other MLS Participants.''
    Paragraphs V.C.-E. of the proposed Final Judgment further require 
NAR to adopt new rules, the content of which must be approved by the 
United States, that:
    a. Repeal any rule that prohibits, discourages, or recommends 
against an MLS or MLS Participant publishing or displaying to consumers 
any MLS data specifying compensation offered to other MLS Participants;
    b. repeal any rule that prohibits, discourages, or recommends 
against an MLS or MLS Participant publishing or displaying to consumers 
any MLS data specifying compensation offered to other MLS Participants; 
or
    c. require all MLS Participants to provide to their clients with 
information about the amount of compensation offered to other MLS 
Participants.
    These provisions, as set forth in the proposed Final Judgment, are 
designed to resolve the competitive concerns related to NAR's 
Commission-Concealment rules as alleged in the Complaint.
2. Free-Service Rule
    Paragraph IV.2 of the proposed Final Judgment prohibits NAR and its 
Member Boards from adopting, maintaining, or enforcing any rule, or 
from entering into or enforcing any agreement, that directly or 
indirectly ``permits or requires MLS Participants, including buyer 
Brokers, to represent or suggest that their services are free or 
available to a Client at no cost to the Client.''
    Paragraph V.F. of the proposed Final Judgment further requires NAR 
to adopt new rules, the content of which must be approved by the United 
States, that:
    a. Repeals any rule that permits all MLSs and MLS Participants, 
including buyer Brokers, to represent that their services are free or 
available at no cost to their clients;
    b. requires all Member Boards and MLSs to repeal any rule that 
permits MLSs and MLS Participants, including buyer Brokers, to 
represent that their services are free or available at no cost to their 
clients; and
    c. prohibits all MLSs and MLS Participants, including buyer 
Brokers, from representing that their services are free or available at 
no cost to their clients.
    These provisions, as set forth in the proposed Final Judgment, are 
designed to resolve the competitive concerns with NAR's Free-Service 
Rule as alleged in the Complaint.
3. Commission-Filter Rules and Practices
    Paragraph IV.3 of the proposed Final Judgment prohibits NAR and its 
Member Boards from adopting, maintaining, or enforcing any rule, or 
from entering into or enforcing any agreement that directly or 
indirectly ``permits or enables MLS Participants to filter, suppress, 
hide, or not display or distribute MLS listings based on the level of 
compensation offered to the buyer Broker or the name of the brokerage 
or agent.''
    Paragraph V.G. of the proposed Final Judgment further requires NAR 
to adopt new rules, the content of which must be approved by the United 
States that:
    a. Prohibits MLS Participants from filtering or restricting MLS 
listings that are searchable by or displayed to consumers based on the 
level of compensation offered to the buyer Broker or the name of the 
brokerage or agent; and
    b. repeals any rule that permits or enables MLS Participants to 
filter or restrict MLS listings that are searchable by or displayed to 
consumers based on the level of compensation offered to the

[[Page 81499]]

buyer Broker, or by the name of the brokerage or agent.
    These provisions, as set forth in the proposed Final Judgment, are 
designed to resolve the competitive concerns with NAR's Commission-
Filter Rules and Practices as alleged in the Complaint.
4. Lockbox Policy
    Paragraph IV.4 of the proposed Final Judgment prohibits NAR and its 
Member Boards from adopting, maintaining, or enforcing any rule, or 
from entering into or enforcing any agreement or practice, that 
directly or indirectly ``prohibits, discourages, or recommends against 
the eligibility of any licensed real estate agent or agent of a Broker, 
from accessing, with seller approval, he lockboxes of those properties 
listed on an MLS.''
    Paragraph V.H. of the proposed Final Judgment further requires NAR 
to adopt one or more rules, the content of which must be approved by 
the United States, that ``requires all Member Boards and MLSs to allow 
any licensed real estate agent or agent of a Broker, to access, with 
seller approval, the lockboxes of those properties listed on an MLS.''
    These provisions, as set forth in the proposed Final Judgment, are 
designed to resolve the competitive concerns with NAR's Lockbox Policy 
as alleged in the Complaint.

B. Other Provisions

    Notice to Member Boards, MLS Participants and Public. Paragraph 
V.I. of the proposed Final Judgment requires NAR to furnish notice of 
this action to all of its Member Boards and MLS Participants through 
(1) a communication, in a form to be approved by the United States, 
that must contain the Final Judgment, the new rules NAR proposes to 
issue to comply with the proposed Final Judgment, and this Competitive 
Impact Statement; and (2) the creation and maintenance of a page on 
NAR's website, to be posted for no less than one year, that contains 
links to the Final Judgment, the new rules NAR proposes to issue to 
comply with the proposed Final Judgment, this Competitive Impact 
Statement; and the Complaint. Notification to NAR's Member Boards and 
MLS Participants is required to ensure compliance with the Final 
Judgment by NAR and its Member Boards and MLS Participants, while 
publication of this action on NAR's website will provide notice to the 
public of all prohibited and required conduct.
    Antitrust Compliance Officer. The proposed Final Judgment also 
contains provisions designed to promote compliance and make enforcement 
of the Final Judgment as effective as possible. Paragraph VI requires 
NAR to appoint an Antitrust Compliance Officer who is responsible for, 
among other things, annually briefing NAR's management on the meaning 
and requirements of the Final Judgment and the antitrust laws, 
providing NAR's management and employees with reasonable notice of the 
meaning and requirements of the Final Judgment, and obtaining and 
maintaining certification from all members of NAR's management that 
they understand and agree to abide by the terms of the Final Judgment. 
The Antitrust Compliance Officer is also required to (1) annually 
communicate to NAR's management and employees that they must disclose 
to the Antitrust Compliance Officer any information concerning any 
potential violation of the Final Judgment of which they are aware and 
(2) file a report with the United States describing that NAR has met 
its obligations under the Final Judgment.
    Enforcement of Final Judgment. Paragraph IX.A. provides that the 
United States retains and reserves all rights to enforce the Final 
Judgment, including the right to seek an order of contempt from the 
Court. Under the terms of this paragraph, NAR has agreed that in any 
civil contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of the 
Final Judgment, the United States may establish the violation and the 
appropriateness of any remedy by a preponderance of the evidence and 
that NAR has waived any argument that a different standard of proof 
should apply. This provision aligns the standard for compliance with 
the Final Judgment with the standard of proof that applies to the 
underlying offense that the Final Judgment addresses.
    Paragraph IX.B. provides additional clarification regarding the 
interpretation of the provisions of the proposed Final Judgment. The 
proposed Final Judgment is intended to remedy the competition the 
United States alleges was harmed by the challenged conduct. NAR agrees 
that it will abide by the proposed Final Judgment and that it may be 
held in contempt of the Court for failing to comply with any provision 
of the proposed Final Judgment that is stated specifically and in 
reasonable detail, as interpreted in light of this procompetitive 
purpose.
    Paragraph IX.C. of the proposed Final Judgment provides that if the 
Court finds in an enforcement proceeding that NAR has violated the 
Final Judgment, the United States may apply to the Court for a one-time 
extension of the Final Judgment, together with such other relief as may 
be appropriate. In addition, to compensate American taxpayers for any 
costs associated with investigating and enforcing violations of the 
Final Judgment, Paragraph IX.C. provides that, in any successful effort 
by the United States to enforce the Final Judgment against NAR, whether 
litigated or resolved before litigation, NAR will reimburse the United 
States for attorneys' fees, experts' fees, and other costs incurred in 
connection with any effort to enforce the Final Judgment, including the 
investigation of the potential violation.
    Paragraph IX.D. states that the United States may file an action 
against NAR for violating the Final Judgment for up to four years after 
the Final Judgment has expired or been terminated. This provision is 
meant to address circumstances such as when evidence that a violation 
of the Final Judgment occurred during the term of the Final Judgment is 
not discovered until after the Final Judgment has expired or been 
terminated or when there is not sufficient time for the United States 
to complete an investigation of an alleged violation until after the 
Final Judgment has expired or been terminated. This provision, 
therefore, makes clear that, for four years after the Final Judgment 
has expired or been terminated, the United States may still challenge a 
violation that occurred during the term of the Final Judgment.
    Expiration of Final Judgment. Paragraph X of the proposed Final 
Judgment provides that the Final Judgment will expire seven years from 
the date of its entry, except that after five years from the date of 
its entry, the Final Judgment may be terminated upon notice by the 
United States to the Court and NAR that the continuation of the Final 
Judgment is no longer necessary or in the public interest.
    Reservation of Rights. Paragraph XI of the proposed Final Judgment 
reserves the rights of the United States to investigate and bring 
actions to prevent or restrain violations of the antitrust laws 
concerning any rule, policy, or practice adopted or enforced by NAR or 
any of its Member Boards and that nothing in the Final Judgment shall 
limit those rights.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable

[[Page 81500]]

attorneys' fees. Entry of the proposed Final Judgment neither impairs 
nor assists the bringing of any private antitrust damage action. Under 
the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the 
proposed Final Judgment has no prima facie effect in any subsequent 
private lawsuit that may be brought against NAR.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and Defendants 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 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 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 U.S. 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final Judgment at any time before the Court's entry of the 
Final Judgment. The comments and the response of the United States will 
be filed with the Court. In addition, comments will be posted on the 
U.S. Department of Justice, Antitrust Division's internet website and, 
under certain circumstances, published in the Federal Register.
    Written comments should be submitted to: Chief, Media, 
Entertainment and Professional Services Section, Antitrust Division, 
U.S. 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.

VI. Alternatives to the Proposed Final Judgment

    As an alternative to the proposed Final Judgment, the United States 
considered a full trial on the merits against NAR. The United States 
could have continued the litigation and sought preliminary and 
permanent injunctions against NAR for the challenged conduct. The 
United States is satisfied, however, that the prohibited and required 
conduct described in the proposed Final Judgment will remedy the 
anticompetitive effects alleged in the Complaint, increasing 
competition for buyer broker services in the United States. Thus, the 
proposed Final Judgment is designed to achieve all or substantially all 
of the relief the United States would have obtained through litigation, 
but avoids the time, expense, and uncertainty of a full trial on the 
merits of the Complaint.

VII. Standard of Review Under the APPA for the 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 60-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. 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 
government 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); United States v. 
Associated Milk Producers, Inc., 534 F.2d 113, 117 (8th Cir. 1976) 
(``It is axiomatic that the Attorney General must retain considerable 
discretion in controlling government litigation and in determining what 
is in the public interest.''); United States v. U.S. Airways Grp., 
Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the 
``court's inquiry is limited'' in Tunney Act settlements); United 
States v. InBev N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 
84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a court's review of a 
consent judgment is limited and only inquires ``into whether the 
government's determination that the proposed remedies will cure the 
antitrust violations alleged in the complaint was reasonable, and 
whether the mechanism to enforce the final judgment are clear and 
manageable'').
    As the U.S. 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 in 
the government's complaint, whether the proposed Final Judgment is 
sufficiently clear, whether its enforcement mechanisms are sufficient, 
and whether it may positively harm third parties. See Microsoft, 56 
F.3d at 1458-62. With respect to the adequacy of the relief secured by 
the proposed Final Judgment, a court may not ```make de novo 
determination of facts and issues.' '' United States v. W. Elec. Co., 
993 F.2d 1572, 1577 (D.C. Cir. 1993) (quoting United States v. Mid-Am. 
Dairymen, Inc., No. 73 CV 681-W-1, 1977 WL 4352, at *9 (W.D. Mo. May 
17, 1977)); see also Microsoft, 56 F.3d at 1460-62; United States v. 
Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); United States v. 
Enova Corp., 107 F. Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. 
Dist. LEXIS 84787, at *3. Instead, ``[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.'' W. Elec. Co., 993 F.2d at 1577 (quotation marks 
omitted). ``The court should bear in mind the flexibility of the public 
interest inquiry: the court's function is not to determine whether the 
resulting array of rights and liabilities is one that will best serve 
society, but only to confirm that the resulting settlement is within 
the reaches of the public interest.'' Microsoft, 56 F.3d at 1460 
(quotation marks omitted); see also United States v. Deutsche Telekom 
AG, No. 19-2232 (TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14, 2020). 
More demanding requirements would ``have enormous practical 
consequences for the government's ability to negotiate future 
settlements,'' contrary to congressional intent. Id. at 1456. ``The 
Tunney Act was not intended to create a disincentive to the use of the 
consent

[[Page 81501]]

decree.'' Id.; see also United States v. Mid-Am. Dairymen, Inc., No. 73 
CV 681-W-1, 1977 WL 4352, at *9 (W.D. Mo. May 17, 1977) (``It was the 
intention of Congress in enacting [the] APPA to preserve consent 
decrees as a viable enforcement option in antitrust cases.'').
    The United States' predictions about the efficacy of the remedy are 
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at 
1461 (recognizing courts should give ``due respect to the Justice 
Department's . . . view of the nature of its case''); United States v. 
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In 
evaluating objections to settlement agreements under the Tunney Act, a 
court must be mindful that [t]he government need not prove that the 
settlements will perfectly remedy the alleged antitrust harms[;] it 
need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'') (internal 
citations omitted); United States v. Republic Servs., Inc., 723 F. 
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to 
which the government's proposed remedy is accorded''); United States v. 
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A 
district court must accord due respect to the government's prediction 
as to the effect of proposed remedies, its perception of the market 
structure, and its view of the nature of the case''); see also Mid-Am. 
Dairymen, 1977 WL 4352, at *9 (``The APPA codifies the case law which 
established that the Department of Justice has a range of discretion in 
deciding the terms upon which an antitrust case will be settled''). The 
ultimate question is whether ``the remedies [obtained by the Final 
Judgment are] so inconsonant with the allegations charged as to fall 
outside of the `reaches of the public interest.' '' Microsoft, 56 F.3d 
at 1461 (quoting W. Elec. Co., 900 F.2d at 309).
    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; see also U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed settlements are 
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``[T]he 
`public interest' is not to be measured by comparing the violations 
alleged in the complaint against those the court believes could have, 
or even should have, been alleged''). 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. Microsoft, 56 
F.3d at 1459-60.
    In its 2004 amendments to the APPA, Congress made clear its intent 
to preserve the practical benefits of using consent judgments proposed 
by the United States in antitrust enforcement, Public Law 108-237 Sec.  
221, and added 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); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). This language explicitly wrote into the statute what Congress 
intended when it first 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 
Sen. Tunney). ``A court can make its public interest determination 
based on the competitive impact statement and response to public 
comments alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citing Enova 
Corp., 107 F. Supp. 2d at 17).

VIII. Determinative Documents

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

Dated: December 10, 2020.

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA

/s/
-----------------------------------------------------------------------
SAMER M. MUSALLAM (DC Bar # 986077)
U.S. Department of Justice, Antitrust Division, 950 Pennsylvania 
Ave. NW, Suite 3110, Washington, DC 20530, Tel: (202) 598-2990, Fax: 
(202) 514-9033, Email: [email protected].
[FR Doc. 2020-27685 Filed 12-15-20; 8:45 am]
BILLING CODE 4410-11-P