Petition for Writ of Certiorari — National Association of Realtors, Petitioner v. United States, et al.

Supreme Court briefOct 10, 2024

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APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Opinion, U.S. Court of Appeals

for the District of Columbia Circuit (Apr. 5,

2024) .....................................................................

APPENDIX B: Judgment, U.S. Court of Appeals

for the District of Columbia Circuit (Apr. 5,

2024) .....................................................................

35a

APPENDIX C: Memorandum Opinion, U.S.

District Court for the District of Columbia (Jan.

25, 2023) ...............................................................

37a

APPENDIX D: Order Granting Petition to Set

Aside Civil Investigative Demand No. 30729,

U.S. District Court for the District of Columbia

(Jan. 25, 2023) .....................................................

50a

APPENDIX E: Order Denying Petition for

Rehearing En Banc, U.S. Court of Appeals for the

District of Columbia Circuit (July 12, 2024) ......

51a

APPENDIX F: Statutory Provisions Involved....

53a

APPENDIX G: Letter from M. Delrahim to W.

Burck (Nov. 19, 2020) ..........................................

80a

APPENDIX H: “Justice Department Withdraws

from Settlement with the National Association

of Realtors,” DOJ Office of Public Affairs (July

1, 2021) .................................................................

81a

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

————

No. 23-5065

————

NATIONAL ASSOCIATION OF REALTORS,

Appellee

UNITED STATES OF AMERICA, et al.,

————

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02406)

————

Argued December 1, 2023

Decided April 5, 2024

————

Frederick Liu, Attorney, U.S. Department of Justice,

argued the cause for appellants. On the briefs were

Daniel E. Haar, Nickolai G. Levin, and Steven J. Mintz,

Attorneys.

Christopher G. Michel argued the cause for appellee.

With him on the brief were Michael D. Bonanno,

William A. Burck, and Rachel G. Frank.

Andrew R. Varcoe, Djordje Petkoski, and Jacob Coate

were on the brief for amicus curiae Chamber of

Commerce of the United States of America in support

of appellee.

Before: HENDERSON, WALKER and PAN,

Circuit Judges.

Opinion for the Court filed by Circuit Judge PAN.

Dissenting opinion filed by Circuit Judge WALKER.

PAN, Circuit Judge. The Antitrust Division of the

United States Department of Justice (“DOJ”) opened

an investigation of potentially anticompetitive practices in the real-estate industry that were implemented by the National Association of Realtors

(“NAR”). In November 2020, DOJ and NAR settled the

case. In addition to filing a Proposed Consent Judgment in the district court, DOJ sent a letter to NAR

stating that DOJ had closed its investigation of certain

NAR practices and that NAR was not required to

respond to two outstanding investigative subpoenas.

Eight months later, in July 2021, DOJ exercised its

option to withdraw the Proposed Consent Judgment,

reopened its investigation of NAR’s policies, and

issued a new investigative subpoena. NAR petitioned

the district court to set aside the subpoena, arguing

that its issuance violated a promise made by DOJ in

the 2020 closing letter. The district court granted

NAR’s petition, concluding that the new subpoena was

barred by a validly executed settlement agreement. We

disagree. In our view, the plain language of the

disputed 2020 letter permits DOJ to reopen its

investigation. We therefore reverse the judgment of

the district court.

NAR is a trade organization with 1.4 million members

who work in the real-estate industry. For decades,

NAR has promulgated a “Code of Ethics,” along with

other related rules, which set policies that NAR mem-

bers must follow when brokering real-estate transactions.

In 2018, DOJ’s Antitrust Division opened a civil

investigation into certain NAR policies, after receiving

a complaint from an industry participant. As part

of the investigation, DOJ issued two subpoenas, or

Civil Investigative Demands (“CIDs”), 1 seeking information and documents related to NAR’s operation

of “multiple-listing services” (“MLSs”). An MLS is an

online, subscription-based database that lists properties that are on the market in a particular geographic

area. Brokers representing sellers (or “listing brokers”) post information about homes that are for sale

on an MLS, where buyer-brokers can view that information. There are hundreds of MLSs operating in the

United States, and some MLSs have tens of thousands

of participants, comprised primarily of members of

NAR’s local associations and boards.

DOJ served its first CID — CID No. 29935 (“CID

No. 1”) — in April 2019. That CID sought information

regarding various practices and procedures adopted by

NAR, including a longstanding policy known as the

“Participation Rule.” Under the Participation Rule,

which NAR first implemented in the 1970s, listing

brokers must offer the same commission to all buyerbrokers when listing a property on an MLS. See

NAR, Handbook on Multiple Listing Policy 34 (2018),

https://perma.cc/AA7S-UFSB. According to DOJ, the

A CID is a type of administrative subpoena. See FTC v. Ken

Roberts Co., 276 F.3d 583, 585 (D.C. Cir. 2001). The Antitrust Civil

Process Act authorizes DOJ to issue a CID whenever it “has

reason to believe that any person may be in possession, custody,

or control of any documentary material, or may have any

information, relevant to a civil antitrust investigation.” 15 U.S.C.

§ 1312(a).

Participation Rule restrains price competition among

buyer-brokers and causes them to steer customers to

higher-commission listings.

In June 2020, DOJ served its second CID — CID

No. 30360 (“CID No. 2”) — which sought information

from NAR about a newly adopted rule called the

“Clear Cooperation Policy.” That policy requires listing

brokers to post a property on an MLS within one

day of when they begin to market the property. See

NAR, Handbook on Multiple Listing Policy 32 (2020),

https://perma.cc/8BPG-UBGT. DOJ believes that the

Clear Cooperation Policy restricts home-seller choices

and precludes competition from new listing services.

NAR expressed its desire to settle the case. Thus, in

July 2020, the parties began proposing “the outlines

of a possible resolution.” J.A. 243. During the negotiations, NAR asked DOJ to agree to refrain from

investigating the Participation Rule for ten years. 2

DOJ refused, stating that “a commitment to not

challenge NAR rules and policies in the future [was] a

nonstarter, especially in light of longstanding Department

policies concerning settlements that affect future

potential investigations.” Id. at 248. Thereafter, DOJ

reiterated during the negotiations that it would not

“commit to never challeng[ing] NAR rules and policies

in the future in light of longstanding Department

policies on such commitments.” Id. at 252 (July 29, 2020,

letter); see also id. at 258–59 (Aug. 12, 2020, letter).

NAR requested that DOJ (1) “stipulate that NAR’s Participation Rule would not be subject to further investigation any time

in the next ten years”; and (2) “send a closing letter to NAR

confirming that it has no obligation to provide additional information or documents in response to CID No. [1] or CID No. [2].”

J.A. 247.

The parties ultimately agreed to enter a Proposed

Consent Judgment, which specifically addressed four

NAR policies other than the Participation Rule and

the Clear Cooperation Policy. 3 The Proposed Consent

Judgment also included a “Reservation of Rights”

clause that generally preserved DOJ’s ability to bring

actions against NAR in the future. The Reservation of

Rights clause provided that “[n]othing 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.” J.A. 176. NAR agreed to that language,

which was proposed by DOJ, but only on the condition

that DOJ provide a “closing letter” concerning the

then-pending investigation of the Participation Rule

and the Clear Cooperation Policy. Id. at 126 (“NAR will

only agree to sign a consent decree including this

[Reservation of Rights] provision if DOJ provides

written confirmation, prior to the execution of the

decree, that it will issue a closing letter.”). NAR asked

that the closing letter confirm that DOJ closed the

existing investigation and that NAR had no obligation

to respond to the two outstanding CIDs. DOJ agreed,

stating that it would send the requested closing letter

The policies addressed in the Proposed Consent Judgment

were: (1) NAR’s “Commission-Concealment Rules,” under which

affiliated brokers could conceal from homebuyers the unilateral

blanket commission offered to buyer-brokers; (2) NAR’s “FreeService Rule,” under which buyer-brokers were permitted to

represent to homebuyers that their services were free; (3) NAR’s

“Commission-Filter Rules and Practices,” under which brokers

could filter properties on an MLS by the rate of commission; and

(4) NAR’s “Lockbox Policy,” which prohibited non-NAR brokers

from accessing the lockboxes that contain the keys to listed properties.

“once the consent decree is filed.” Id. at 128 (Oct. 28,

2020, email).

On November 19, 2020, the government did two

things: (1) It filed the signed Proposed Consent Judgment

in the district court, along with a Complaint and a

“Stipulation and Order”; and (2) it sent the closing

letter to NAR’s counsel. None of the documents filed in

court mentioned the Participation Rule or the Clear

Cooperation Policy. DOJ’s Complaint alleged that the

four other NAR policies that were the subject of the

Proposed Consent Judgment violated Section 1 of the

Sherman Act, while the Proposed Consent Judgment

contained settlement terms related to those four other

policies. See supra note 3 (describing the NAR policies

covered by the Proposed Consent Judgment). The

Stipulation and Order stated that NAR would “abide

and comply” with the Proposed Consent Judgment,

pending the entry of a final judgment in the case by

the district court. J.A. 148. It also provided that “[t]he

United States may withdraw its consent at any time

before the entry of the proposed Final Judgment.”

Id. at 147.

The closing letter sent to NAR’s counsel ended the

then-pending investigation of the Participation Rule

and the Clear Cooperation Policy, stating:

Dear Mr. Burck [NAR’s counsel]:

This letter is to inform you that the Antitrust

Division has closed its investigation into [NAR’s]

Clear Cooperation Policy and Participation Rule.

Accordingly, NAR will have no obligation to

respond to CID Nos. 29935 and 30360 issued

on April 12, 2019 and June 29, 2020, respectively.

No inference should be drawn, however, from

the Division’s decision to close its investigation

into these rules, policies or practices not

addressed by the consent decree.

Sincerely,

/s/ Makan Delrahim [Assistant Attorney General

Antitrust Division]

J.A. 178.

DOJ published the Complaint, the Proposed Consent

Judgment, and a Competitive Impact Statement in

the Federal Register, as mandated by the Tunney

Act. See United States v. National Association of

REALTORS® Proposed Final Judgment and Competitive Impact Statement, 85 Fed. Reg. 81,489 (Dec.

16, 2020); 15 U.S.C. § 16(b). The Competitive Impact

Statement included a “description of events” giving

rise to the allegations in the Complaint, and explained

the parties’ Proposed Consent Judgment, the remedies

available to potential private litigants, the procedures

available to modify the negotiated terms, alternatives

to settlement that the government considered, and the

standard of review governing the court’s approval

of the Proposed Consent Judgment. See J.A. 179–200.

The Tunney Act requires that the United States

“receive and consider any written comments” pertaining

to the published materials during a mandatory 60-day

period. 15 U.S.C. § 16(d). Thereafter, the district court

must determine whether the proposed consent judgment is in the “public interest” before issuing a final

judgment. Id. § 16(e).

In July 2021, after an unsuccessful negotiation to

modify the parties’ settlement agreement, DOJ exercised

its option to withdraw the Proposed Consent Judgment.

The government voluntarily dismissed the Complaint

and filed a notice informing the district court of the

withdrawal of its consent. Five days later, DOJ issued

a new subpoena — CID No. 30729 (“CID No. 3”) —

which requested information from NAR regarding the

Participation Rule and the Clear Cooperation Policy,

as well as several policies addressed in the withdrawn

Proposed Consent Judgment.

NAR petitioned the district court to set aside CID

No. 3, arguing that its issuance contravened the

parties’ binding settlement agreement, which included

DOJ’s promise in the November 2020 closing letter to

close its investigation of the Participation Rule and the

Clear Cooperation Policy. Specifically, NAR argued

that it had satisfied its obligations under the settlement

agreement by beginning to perform the requirements

of the Proposed Consent Judgment, and that DOJ

breached the overall agreement by issuing CID No. 3

in contravention of the closing letter. The district court

granted NAR’s petition, agreeing with NAR that CID

No. 3 was barred by “a validly executed settlement

agreement.” Nat’l Ass’n of Realtors v. United States,

2023 WL 387572, at *3 (D.D.C. Jan. 25, 2023). The

court concluded that the parties’ settlement agreement

included the November 2020 closing letter; and that

“the government breached the agreement by reopening

the investigation into those same rules and serving the

new CID.” Id. at *4. 4 DOJ timely appealed. We have

jurisdiction under 15 U.S.C. § 1314(e) and 28 U.S.C.

§ 1291.

NAR also petitioned the district court to modify CID No. 3

because it “ma[de] demands that are overly broad, unduly burdensome, and irrelevant to any permissible investigation.” J.A.

15. The district court declined to address NAR’s breadth and

burdensomeness objections because it set aside the CID in full.

Because the district court did not rule on NAR’s request for

modification, we decline to reach the issue.

II.

The Antitrust Civil Process Act (“ACPA”) authorizes

courts to “set[] aside” a CID based on “any failure of

such demand to comply with the provisions of [the

ACPA], or upon any constitutional or other legal right

or privilege.” 15 U.S.C. § 1314(b). The parties agree

that a CID is unenforceable if it is barred by a valid

settlement agreement. See NAR Br. 18; DOJ Br. 28.

The party served with a CID bears the burden of

demonstrating that it should be set aside. United

States v. R. Enters., Inc., 498 U.S. 292, 301 (1991).

A settlement agreement is a contract. See Vill. of

Kaktovik v. Watt, 689 F.2d 222, 230 (D.C. Cir. 1982).

The “[i]nterpretation of the plain language of a contract is a question of law subject to de novo review by

this court.” LTV Corp. v. Gulf States Steel, Inc. of Ala.,

969 F.2d 1050, 1055 (D.C. Cir. 1992); see also Armenian

Assembly of Am., Inc. v. Cafesjian, 758 F.3d 265, 278

(D.C. Cir. 2014) (de novo review for the question of

whether a contract is ambiguous). We give deference,

however, to the district court’s factual findings if they

are at issue on appeal. See United States v. Microsoft

Corp., 147 F.3d 935, 945 n.7 (D.C. Cir. 1998). In determining the meaning of federal contracts, we apply

“federal common law,” which looks to the Restatement

of Contracts. United States v. Honeywell Int’l Inc., 47

F.4th 805, 816 (D.C. Cir. 2022); Curtin v. United

Airlines, Inc., 275 F.3d 88, 93 n.6 (D.C. Cir. 2001).

The district court determined that the Proposed

Consent Judgment and the closing letter were components of a single, binding settlement agreement. See

Nat’l Ass’n of Realtors, 2023 WL 387572, at *4. The

parties have not meaningfully briefed the potential

unenforceability of the closing letter due to the

withdrawal of the Proposed Consent Judgment, and

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both parties agree that “[t]he key question is . . .

whether DOJ’s promise [in the closing letter] to close

the investigation and rescind the CIDs left it free to

resume the investigation and reissue the CIDs based

solely on its preference to do so.” NAR Br. 14; see also

Oral Arg. Tr. at 3:13–16, Nat’l Ass’n of Realtors v.

United States (No. 23-5065) (counsel for the government stating that “[t]he question is whether in addition

to agreeing to close its investigation the Division made

a commitment not to reopen it. The answer is no.”).

We therefore accept the parties’ apparent assumption

that the closing letter is a binding agreement that

remains enforceable, notwithstanding the withdrawal

of the Proposed Consent Judgment. See, e.g., NAR Br.

43 n.11; Oral Arg. Tr. at 11:16–12:6. We adopt the

framing of the dispute that is advanced by the parties

because “[i]n our adversarial system of adjudication,

we follow the principle of party presentation.” United

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).

In other words, “we rely on the parties to frame the

issues for decision and assign to courts the role of

neutral arbiter of matters the parties present.” Greenlaw

v. United States, 554 U.S. 237, 243 (2008). 5

Nevertheless, we observe that the closing letter likely became

unenforceable when the Proposed Consent Judgment was lawfully withdrawn because both documents were essential parts

of the parties’ settlement agreement: NAR agreed to enter the

Proposed Consent Judgment on the condition that DOJ issue the

closing letter, J.A. 126; and NAR contends that the terms of the

closing letter are in effect because it had begun performing its

obligations under the Proposed Consent Judgment “in reliance on

the terms of the settlement,” NAR Br. 8 (citing J.A. 23–24). The

closing letter and Proposed Consent Judgment thus do not appear

to be severable. See Booker v. Robert Half Int’l, Inc., 413 F.3d 77,

85 (D.C. Cir. 2005) (holding that an unenforceable term is

severable from an agreement if it is “not [] essential to a contract’s

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III.

As framed by the parties, the issue before us is

narrow. DOJ argues only that the plain language of

the closing letter does not bar it from reopening its

investigation and issuing a new CID regarding the

Participation Rule and the Clear Cooperation Policy.

We agree.

“Under general contract law, the plain and unambiguous meaning of an instrument is controlling.”

WMATA v. Mergentime Corp., 626 F.2d 959, 960–61

(D.C. Cir. 1980). Thus, if the text of the closing letter is

unambiguous, “that is the end of the matter” and we

need not address the parties’ negotiation history or

any other extrinsic evidence. Brubaker v. Metro. Life

Ins. Co., 482 F.3d 586, 590 (D.C. Cir. 2007); Iberdrola

Renewables, Inc. v. FERC, 597 F.3d 1299, 1304 (D.C.

Cir. 2010).

The disputed language of the closing letter states:

[T]he Antitrust Division has closed its

investigation into [NAR’s] Clear Cooperation

Policy and Participation Rule. Accordingly,

NAR will have no obligation to respond to CID

Nos. 29935 and 30360 issued on April 12,

2019 and June 29, 2020, respectively.

J.A. 178.

consideration” (citing Restatement (Second) of Contracts § 184

(Am. L. Inst. 1981)) (additional citations omitted)). Moreover, we

note that the closing letter, viewed on its own, appears to be

a unilateral promise unsupported by consideration or partial

performance, which typically would be unenforceable as a matter

of contract law. See Restatement (Second) of Contracts § 71

(Am. L. Inst. 1981) (“To constitute consideration, a performance

or a return promise must be bargained for.”).

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The plain meaning of that provision is that DOJ

closed its then-pending investigation and relieved

NAR of its obligation to respond to two specifically

identified CIDs. We discern no commitment by DOJ —

express or implied — to refrain from either opening a

new investigation or reopening its closed investigation,

which might entail issuing new CIDs related to NAR’s

policies. Put simply, the fact that DOJ “closed its

investigation” does not guarantee that the investigation

would stay closed forever. The words “close” and

“reopen” are unambiguously compatible. See Close,

Merriam-Webster Dictionary (“to bring to an end or

period”); Reopen, Merriam-Webster Dictionary (legal

definition) (“to resume the discussion or consideration

of (a closed matter)” (emphasis added)). Thus, DOJ’s

decision to “reopen” the investigation and to issue CID

No. 3 was consistent with the closing letter’s “plainly

expressed intent.” M&G Polymers USA, LLC v. Tackett,

574 U.S. 427, 435 (2015) (cleaned up).

Our interpretation of the operative language is

supported by another provision in the closing letter, as

well as an interpretive canon of construction. First,

DOJ included a “no inference” clause in the closing

letter, which states that “[n]o inference should be

drawn . . . from the Division’s decision to close its

investigation into these rules, policies or practices not

addressed by the consent decree.” J.A. 178. That clause

confirms that DOJ did not intend to imply any

additional terms in the letter, such as one prohibiting

a reopened investigation. Second, the unmistakability

principle, a canon of construction, instructs that “a

contract with a sovereign government [should] not be

read to include an unstated term exempting the other

contracting party from the application of a subsequent

sovereign act . . . , nor [should] an ambiguous term of

a grant or contract be construed as a conveyance or

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surrender of sovereign power.” United States v. Winstar

Corp., 518 U.S. 839, 878 (1996) (plurality op.). In other

words, we will not interpret a contract to cede a

sovereign right of the United States unless the government waives that right unmistakably. The closing letter

contains no “unmistakable term” ceding DOJ’s power to

reopen its investigation: To the contrary, it includes a

“no inference clause” that explicitly disclaims any

intent to include unstated terms. We therefore decline

to read an unwritten term into the agreement that

limits the government’s prosecutorial authority. Merrion

v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982). 6

We note that NAR should not have been misled by

the words used in the closing letter because investigations are routinely “closed” and then later “reopened.”

For example, in Schellenbach v. SEC, the National

Association of Securities Dealers (“NASD”), a selfregulatory organization, “reopen[ed]” a securities-law

investigation after initially issuing a letter “signaling

the end of [its] investigation.” 989 F.2d 907, 909–11

(7th Cir. 1993). The Seventh Circuit held that “even if

Although the government did not raise the unmistakability

principle before the district court, that principle cannot be

forfeited because it is a “canon of contract construction.” Winstar,

518 U.S. at 860. We can consider “interpretive canons” even if a

party “intentionally left them out of [its] brief.” Guedes v. BATFE,

920 F.3d 1, 22 (D.C. Cir. 2019) (per curiam). But even if the

doctrine were forfeitable, it was not forfeited here because NAR

itself put the doctrine at issue before the district court in citing

an Office of Legal Counsel opinion discussing Winstar and the

rule against waiver of sovereign power. See Resp. to the Gov’t’s

Opp. to NAR’s Pet. 3, Nat’l Ass’n of Realtors v. United States, Civ.

No. 21-02406 (D.D.C. Nov. 12, 2021), ECF No. 21-2 (citing Auth. of

the U.S. to Enter Settlements Limiting the Future Exercise of Exec.

Branch Discretion, 23 Op. OLC 126 (June 15, 1999)). NAR

therefore cannot claim to be surprised by our consideration of the

unmistakability principle.

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the . . . letter signaled that the NASD had closed

its investigation of [the petitioner], the NASD was

perfectly free to reconsider the matter.” Id. at 911. In

fact, the court found no “support [for] the proposition

that the NASD may not reopen [the] investigation”

following the issuance of the closing letter. Id.

Although NAR distinguishes Schellenbach by arguing

that the letter in that case was not part of a contract,

that fact does not cast doubt on our conclusion that the

plain meaning of the word “close” does not preclude

DOJ from “reopening” its investigation.

Investigations initiated by the government are no

different. For example, in Marinello v. United States,

the Supreme Court noted that between 2004 and 2009,

the IRS “opened, then closed, then reopened an investigation into the tax activities of Carlo Marinello.” 138

S. Ct. 1101, 1105 (2018). And in J. Roderick MacArthur

Foundation v. FBI, we emphasized that the FBI had

an interest in retaining certain intelligence it had

gathered because “information that was once collected

as part of a now-closed investigation may yet play a

role in a new or reopened investigation.” 102 F.3d 600,

604 (D.C. Cir. 1996); see also Senate of the Commonwealth

of P.R. on Behalf of Judiciary Comm. v. DOJ, 823

F.2d 574, 586 (D.C. Cir. 1987) (noting that a “DOJ

investigation . . . was closed officially on April 16, 1980,

and did not reopen until August 1983”).

In sum, the closing letter unambiguously permits

DOJ to reopen its investigation of the Participation

Rule and the Clear Cooperation Policy. Our interpretation is supported by the letter’s plain language, its

inclusion of the “no-inference” clause, and our application of the unmistakability principle.

15a

NAR’s counterarguments do not persuade us. As a

textual matter, NAR argues that we should adopt

the district court’s reasoning that, in plain English,

“[o]pening an investigation is the opposite of closing

one.” Nat’l Ass’n of Realtors, 2023 WL 387572, at *4.

Based on that logic, the district court held that

reopening the investigation of the disputed policies

violated DOJ’s promise to close it. See id. As discussed

above, the words “close” and “reopen” are not mutually

exclusive, and we reject NAR’s argument that the

closing letter imposed any future obligation on DOJ.

Rather, the letter stated only that “NAR will have no

obligation to respond” to the CIDs identified in the

closing letter — namely, “CID Nos. 29935 and 30360

issued on April 12, 2019 and June 29, 2020,

respectively.” J.A. 178.

NAR also analogizes the closing letter to a parent

instructing a child to “close the door when you leave

for school,” arguing that the parent “would surely feel

misunderstood if the child closed the door and then

immediately reopened it before departing for the day.”

NAR Br. 22 (citing Biden v. Nebraska, 143 S. Ct. 2355,

2376–82 (2023) (Barrett, J., concurring)). But a hypothetical parent instructing a child to “close the door

when you leave for school” does not intend that the

child never open the door again, and the approximately eight months that elapsed between the

issuance of the closing letter and the reopening of

the investigation do not factually support a claim of an

“immediate” reopening.

Next, NAR urges us to consider extrinsic evidence

to support its interpretation of the closing letter.

Specifically, NAR relies on the parties’ negotiating

history, DOJ’s “course of performance,” and NAR’s own

16a

priorities and incentives to support its argument that

DOJ agreed not to “reopen” the investigation of the

Participation Rule and Clear Cooperation Policy. Those

arguments have no traction because, as we have

discussed, we do not consider extrinsic evidence where

the plain text of an agreement is unambiguous.

See NRM Corp. v. Hercules, Inc., 758 F.2d 676, 682

(D.C. Cir. 1985) (“Only if the court determines as a

matter of law that the agreement is ambiguous will

it look to extrinsic evidence of intent to guide the

interpretive process.”); Iberdrola, 597 F.3d at 1304. In

any event, NAR’s extrinsic evidence is unconvincing.

First, NAR asserts that the parties’ agreement to

omit any mention of the Participation Rule and Clear

Cooperation Policy in the Proposed Consent Judgment

“make[s] clear that DOJ’s promise in the Closing

Letter was a deliberate carveout from the reservationof-rights provision in the consent decree.” NAR Br. 25.

But the text of the Reservation of Rights clause

supports DOJ’s position that it retained the right to

investigate the Participation Rule and the Clear

Cooperation Policy: The clause generally preserves

the government’s authority to investigate and bring

actions “concerning any Rule or practice adopted or

enforced by NAR or any of its Member Boards.” J.A.

176 (emphasis added). Moreover, during the parties’

negotiations, DOJ explicitly declined to accept any

agreement that constrained future investigations —

and did so on three separate occasions.7 Thus, the

First, when NAR requested that DOJ “stipulate that NAR’s

Participation Rule would not be subject to further investigation

any time in the next ten years,” J.A. 247, DOJ responded that any

“commitment to not challenge NAR rules and policies in the

future,” was “a nonstarter.” Id. at 248. Second, when NAR

proposed that “any changes to the Participation Rule and/or the

Clear Cooperation Policy . . . will completely address all of the

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negotiating history of the Reservation of Rights provision

is inconclusive.

Second, NAR contends that DOJ’s “course of performance” — i.e., its eventual withdrawal of the Proposed

Consent Judgment — demonstrates that DOJ “understood that the Closing Letter ‘prevented’ it from

investigating NAR’s Participation Rule and Clear

Cooperation Policy.” NAR Br. 28. According to NAR,

DOJ withdrew the Proposed Consent Judgment because it wished to reopen its investigation of those

policies but recognized that it could not do so without

modifying the overall settlement agreement. But we

decline to allow NAR to take contradictory positions

with respect to the relationship between the Proposed

Consent Judgment and the closing letter. NAR may

not implicitly assume that these are separate agreements such that the closing letter remained enforceable

despite the withdrawal of the Proposed Consent Judgment, see supra note 5, while also arguing that the two

documents were part of the same settlement agreement for purposes of interpreting the meaning of the

closing letter. “Simply put, [NAR] cannot have it both

ways.” See United States v. Philip Morris USA Inc., 840

F.3d 844, 853 (D.C. Cir. 2016) (rejecting defendant’s

contradictory positions about the effect of a district

court order); Nat’l Ass’n of Crim. Def. Laws., Inc. v.

DOJ, 182 F.3d 981, 985 (D.C. Cir. 1999) (noting that “a

Division’s concerns and that the Division will close its investigation,” id. at 251, DOJ again responded that “we cannot commit to

never challenge NAR rules and policies in the future.” Id. at 252.

And third, when DOJ agreed to send NAR a closing letter, it

reiterated that “the Division cannot commit to never investigating or challenging NAR’s rules and policies in the future ” Id at

259.

18a

party may not blow hot and cold” in taking inconsistent positions).

Lastly, NAR argues that it would not have agreed to

the Proposed Consent Judgment without a commitment

from DOJ not to investigate the Participation Rule and

the Clear Cooperation Policy in the future. According

to NAR, without such a commitment, “the agreement

contemplated only a letter worth nothing but the

paper on which it was written.” NAR Br. 24 (quoting

Nat’l Ass’n of Realtors, 2023 WL 387572, at *4). We

disagree. Contrary to NAR’s contention, NAR gained

several benefits from the closing of DOJ’s pending

investigation in 2020. Most obviously, NAR was relieved

of its obligation to respond to the two outstanding CIDs,

which required the production of substantial information. Moreover, NAR gained some value from the

possibility that DOJ would not reopen its investigation

at all, or for a substantial period of time. In addition,

NAR avoided the risk that its responsive documents

would be publicized in conjunction with a potential

future complaint filed by DOJ.

Significantly, NAR also used the closing letter to its

advantage in other, private litigation that was pending

when the closing letter was negotiated and issued.

Plaintiffs in the private litigation asserted claims

under the Sherman Act and California’s Cartwright

Act, stemming from NAR’s adoption of the Clear

Cooperation Policy. See PLS.com, LLC v. Nat’l Ass’n of

Realtors, 32 F.4th 824, 831 (9th Cir. 2022). One day

after DOJ issued the closing letter, NAR submitted the

letter to the court presiding over the private litigation

as evidence that DOJ was no longer investigating

NAR’s policy. See NAR’s Response to Plaintiff’s Notice

of Supplemental Authority at Ex. B, PLS.com, LLC v.

Nat’l Ass’n of Realtors, 516 F. Supp. 3d 1047 (C.D. Cal.

19a

2021) (Case No. 2:20-cv-04790), ECF No. 88 (filed on

Nov. 20, 2020). NAR’s filing asserted that “for the Clear

Cooperation Policy at issue in [the private litigation],

on the same day it commenced the Tunney Act proceedings, the Department of Justice sent NAR a closing letter, attached hereto as Exhibit B, . . . ‘clos[ing]

its investigation into the . . . Clear Cooperation Policy

and Participation Rule.’” Id. at 1 (quoting J.A. 178).

NAR thus used the closing letter to bolster its

litigating position in the private lawsuit, thereby plainly

benefitting from the letter’s issuance.

We agree with our dissenting colleague that DOJ

promised to “close” its investigation of the Participation

Rule and Clear Cooperation Policy, in exchange for

NAR’s concessions regarding four other policies, embodied

in the Proposed Consent Judgment. See Dissenting Op.

at 1–2. But the dissent goes on to assert that it would

be a violation of the settlement agreement if DOJ

“immediately” reopened the investigation it had agreed

to close, while NAR was still bound by the contract. Id.

at 1 (emphasis in original); see also id. at 5 n.7 (“So as

DOJ sees things, it had the right to reopen the investigation (immediately) even if the contract remained

in force.”). We take no position on the hypothetical

situation addressed by the dissent. In the case before

us, DOJ exercised its option to withdraw the Proposed

Consent Judgment, thereby releasing NAR from its

obligations under the agreement; only then did DOJ

reopen its investigation and issue a new CID for

information related to the Participation Rule and

Clear Cooperation Policy — and that reopening

occurred eight months after the original settlement

agreement was reached. Because the reopening was

not “immediate” and there was never a time when

20a

NAR was bound by the settlement agreement while

DOJ was not, the dissent’s analysis is inapposite. 8

The dissent contends that DOJ “unilaterally reneged”

on the settlement agreement, and states that “[for]

purposes of this appeal, it doesn’t matter that DOJ

withdrew the consent decree when it reopened the

investigation.” Dissenting Op. at 3 & n.5. Those statements overlook that NAR agreed to the term of the

settlement agreement that gave DOJ the unfettered

right to withdraw its consent at any time. See J.A. 147.

When DOJ exercised that option, it put the parties

back to where they were before they entered the

settlement — i.e., it restored the status quo ante. Thus,

DOJ did nothing nefarious or underhanded when it

As we have noted, supra pp. 9–10 & n.5, we confined our

opinion to the meaning of the closing letter, as the parties asked

us to do. The dissent, however, interprets the overall settlement

agreement, including the quid pro quo in which NAR signed the

Proposed Consent Judgment in exchange for DOJ’s issuance of

the closing letter. See generally Dissenting Op. As we explained,

supra note 5, consideration of the overall agreement would likely

lead to the conclusion that DOJ’s withdrawal from the Proposed

Consent Judgment had the effect of canceling the entire deal —

i.e., the closing letter would not be enforceable if the Proposed

Consent Judgment were withdrawn because the two components

of the agreement are not severable. DOJ, however, chose not to

rely on that argument, and instead asked us to interpret the

language in the closing letter as if it were enforceable. See supra

pp. 9–10 & n.5; Oral Arg. Tr. at 11. The dissent apparently

misunderstands DOJ’s position — it transforms DOJ’s decision

not to argue that both parts of the deal were canceled into a

concession that the court may interpret the overall settlement

agreement while ignoring DOJ’s withdrawal from the Proposed

Consent Judgment. See Dissenting Op. at 5 n.7 (“DOJ disavowed

the argument that its unilateral withdrawal had anything to do

with this case.”); id. (“So as DOJ sees things, it had the right to

reopen the investigation (immediately) even if the contract

remained in force.”).

21a

withdrew from the settlement, as NAR had agreed it

could do.

Finally, we cannot agree with the dissent that

“the sole question [in this appeal] is whether DOJ is

correct that it could have immediately reopened its

investigation of the Realtors’ two remaining policies

after contracting to close that investigation.” Dissenting

Op. at 4. As the dissent acknowledges, the facts before

us do not demonstrate an “immediate” reopening of the

investigation after it was closed. See id. at 3 (stating

that “about eight months after contracting to close its

investigation into the two remaining policies, DOJ

reopened the investigation”). We therefore have no

occasion to consider that scenario and we decline to

opine on whether such conduct by DOJ would constitute

a breach of the agreement.

* * *

For the foregoing reasons, we reverse the judgment

of the district court and remand for further proceedings

consistent with this opinion.

So ordered.

22a

WALKER, Circuit Judge, dissenting: The National

Association of Realtors made a contract with the

Antitrust Division of the Department of Justice. As in

every contract, each side gained something, and each

side gave something up. The Realtors agreed to give up

four policies that DOJ considered anticompetitive.

In exchange, DOJ promised that it had “closed” its

investigation into two other policies.

DOJ doesn’t deny that it made a contract. Nor is

there any dispute about what it gained. Instead, the

sole question is — what did DOJ give up when it

“closed” the investigation?

Nothing, if we believe DOJ. As it sees things, it could

immediately reopen its investigation because anything

“closed” can be reopened at any time.

No court identified by DOJ has endorsed such a

reading. Nor should we. Because DOJ misreads one

isolated word (“closed”) to nullify what the Realtors

gained from an otherwise comprehensive and comprehensible contract, I respectfully dissent.

In 2019, the Antitrust Division of the Department of

Justice opened a civil investigation into the National

Association of Realtors’ policies. In 2020, several months

into the investigation, each side came to the bargaining table. DOJ identified six policies that it wanted

changed. The Realtors expressed a willingness to

change four of them. But the Realtors repeatedly

insisted that they would “not agree” to change those

four policies “without prior written assurances” that

DOJ “has closed its investigation” into the other two.

JA 109 (Realtors expressing these demands via email

23a

to DOJ); see also JA 126 (Realtors attaching these

demands to DOJ’s draft reservation of rights provision).1

Eventually, DOJ decided that securing changes to

the four anticompetitive policies outweighed the risks

of bringing a lawsuit that might change none if DOJ

took the case to court and lost. 2 So DOJ finally

acquiesced to the Realtors’ demand. And with that,

they had a deal.

The parties captured their deal in a settlement

agreement. The agreement detailed the extensive

changes the Realtors would need to immediately

undertake. JA 165-74. 3 As for DOJ’s promise to close,

one page of the agreement stated:

[T]he Antitrust Division has closed its

investigation into the [two remaining

policies]. Accordingly, [the Realtors] will

have no obligation to respond to [two Civil

Investigative Demands regarding those

two remaining policies].

JA 178 (emphasis added). 4

When describing what happened in 2019 and 2020, I will refer

to the government as “DOJ” or “the Antitrust Division of the Department of Justice,” rather than DOJ’s preferred nomenclature:

“the previous leadership of the Division.” DOJ Br. at 11.

Cf. United States v. United States Sugar Corp., 73 F.4th 197

(3d Cir. 2023) (failed DOJ civil antitrust suit); United States v.

UnitedHealth Group Inc., 630 F. Supp. 3d 118 (D.D.C. 2022)

(same); United States v. Booz Allen Hamilton Inc., No. CCB-221603, 2022 WL 16553230 (D. Md. Oct. 31, 2022) (same).

This portion of the settlement agreement is called the

“consent decree.”

This portion of the settlement agreement is called the “closing

letter.”

24a

With that agreement in place, the Realtors immediately began to comply. But unexpectedly, DOJ later

insisted on modifying the agreement. When the Realtors

refused, DOJ unilaterally reneged. In July 2021, about

eight months after contracting to close its investigation into the two remaining policies, DOJ reopened the

investigation. 5

The Realtors sued, arguing that the reopened

investigation is not what they bargained for. National

Association of Realtors v. United States, No. 21-2406,

2023 WL 387572, at *2 (D.D.C. Jan. 25, 2023). The

district court agreed with the Realtors. It explained

that the “government, like any party, must be held

to the terms of its settlement agreements.” Id. at *5;

cf. United States v. Lee, 106 U.S. 196, 220 (1882) (“No

man in this country is so high that he is above the

law.”). It also noted that “the government itself understood the broader settlement to require closure of the

investigation” — a “common-sense interpretation of

the parties’ settlement” that DOJ does not dispute.

National Association of Realtors, 2023 WL 387572,

at *4. So, as the district court said, “it is not hard to

conclude that the new [reopening] violates the agreement.” Id.

DOJ appealed.

For the purposes of this appeal, it doesn’t matter that DOJ

withdrew the consent decree when it reopened the investigation.

See Maj. Op. at 16-17 (rejecting course of performance arguments

in this case). That’s because the contract’s meaning depends on

what it unambiguously says, not on what happened eight months

after its formation. And as DOJ repeatedly insists, the meaning

of “closed” at the time of contract formation is the sole issue before

the Court. See infra n 6.

25a

The question presented is not whether DOJ’s promise to close an investigation means the investigation

must stay closed forever. Nor is the question whether

DOJ can reopen an investigation eight months after it

contracts to close it, as DOJ did here. Rather, the sole

question is whether DOJ is correct that it could have

immediately reopened its investigation of the Realtors’

two remaining policies after contracting to close that

investigation. 6

Because DOJ’s sole argument is wrong, I would

affirm the district court on the narrow grounds presented

to us by DOJ’s appeal. 7

DOJ readily admits that this is its one and only argument.

See Oral Arg. Tr. at 4 (Question: “If we disagree with you about

[the meaning of closed], do you have another theory where you

can win; or do you concede that’s the case?” DOJ: “That is our

theory in this Court which is that when the Antitrust Division

made the commitment to close, that did not apply any additional

commitment to refrain from reopening, and that’s clear throughout the

record.”); id. at 8 (Question: “[D]o you have any concern that what

DOJ is doing here will make it harder for future DOJs to convince

parties in [the Realtors’] shoes that when DOJ says it will close

an investigation, it will stay closed for more than a half minute?”

DOJ: “No, because we made clear throughout the process that

we weren’t making that commitment.”); id. at 12 (Question: “So,

you’re just relying on your interpretation of the closing letter[?]”

DOJ: “Correct. Correct.”); see also DOJ Reply Br. at 8 (arguing

that DOJ is permitted to reopen investigations “at any time”).

Some readers may wonder, “Should DOJ lose just because

their only argument is unpersuasive?” Yes. “But shouldn’t they

win if we can come up with a winning argument for them?” Not

usually, and not here. “We adopt the framing of the dispute that

is advanced by the parties because ‘in our adversarial system of

adjudication, we follow the principle of party presentation.’” Maj.

Op. at 10 (quoting United States v. Sineneng-Smith, 140 S. Ct.

1575, 1579 (2020)) (cleaned up).

26a

Let’s start with some common ground. DOJ says

“closed” and “reopen” are not mutually exclusive. And

sometimes that’s true. In the abstract, a promise to

close something does not always include a promise to

keep it closed forever.

But this abstract understanding of “closed” and

“reopen” is only the starting point of our analysis.

That’s because “context matters.” Caraco Pharmaceutical

Here’s what that means: DOJ disavowed the argument that its

unilateral withdrawal had anything to do with this case. Oral

Arg. Tr. at 11 (Question: “And it seems to me that there is a

plausible argument that this closing letter, if it’s part of an overall

agreement that included the consent decree, was withdrawn

when the consent decree was withdrawn. Are you not making that

argument?” DOJ: “We’re not pressing that argument as a standalone argument here . . . .”). So any arguments about unilateral

withdrawals don’t matter — even if they might otherwise have

been winning ones. See Maj. Op. at 9 (“The parties have not

meaningfully briefed the potential unenforceability of the closing

letter due to the withdrawal of the Proposed Consent Judgment . . . .”).

But see id. at 19 (“In the case before us, DOJ exercised its option

to withdraw the Proposed Consent Judgment, thereby releasing

[the Realtors] from [their] obligations under the agreement . . .

eight months after the original settlement agreement was

reached. Because the reopening was not ‘immediate’ and there

was never a time when [the Realtors were] bound by the settlement agreement while DOJ was not, the dissent’s analysis is

inapposite.”).

So as DOJ sees things, it had the right to reopen the investigation (immediately) even if the contract remained in force. That is

the only argument DOJ made on appeal. See supra n.6. And if

that argument isn’t a winner, DOJ’s appeal can’t be a winner.

But see Maj. Op. at 20 (“Finally, we cannot agree with the dissent

that ‘the sole question [in this appeal] is whether DOJ is correct

that it could have immediately reopened its investigation of the

Realtors’ two remaining policies after contracting to close that

investigation.’”).

27a

Laboratories, Ltd. v. Novo Nordisk A/S, 566 U.S. 399,

414 (2012). And depending on the context, a promise to

close something might mean the closer cannot immediately reopen it. See Oral Arg. Tr. at 6 (DOJ: “context is

critical”).

A hypothetical presented by the Realtors illustrates

the point. Consider the following:

A parent tells a child,

“Close the door.”

Without context, we can’t know when the child may

reopen the door. Read literally, the child may close the

door and then immediately reopen it. But a “good

textualist is not a literalist.” See Antonin Scalia, A

Matter of Interpretation 24 (1997). So to know more,

we need context.

Now imagine:

A parent says,

“Close the door when you leave for school.”

In that case, even if DOJ’s literalist reading works

in the abstract, it fails to capture the command’s true

meaning. Perhaps Dennis the Menace would close the

door and then immediately reopen it before he runs

toward the school bus and mockingly calls back, “You

didn’t say to keep it closed!” But an obedient child

would not.

We encounter situations like this all the time, both

in life and the law. Consider the following:

A gate agent tells a late passenger,

“Sorry, I’ve closed the jet bridge.”

A sign on a barricade says,

“Road Closed.”

28a

The late passenger understands that the gate agent

means, “I’ve closed the jet bridge and I won’t reopen it

for your flight.” And if the “Road Closed” sign is on

Glacier Park’s Going-to-the-Sun Road in December,

the sign means the road ahead is closed for the rest of

the season. As these examples illustrate, “ultimately,

context determines meaning.” Caraco, 566 U.S. at 41314 (cleaned up); see also Biden v. Nebraska, 143 S. Ct.

2355, 2378 (2023) (Barrett, J., concurring) (“To strip a

word from its context is to strip that word of its

meaning.”).

So to sum up, I accept DOJ’s abstract contention

that “closed” and “reopen” are sometimes compatible.

But because “context may drive such a statement in

either direction,” a promise to close something may at

times preclude an immediate reopening. Pulsifer v.

United States, 601 U.S. at __ (2024) (slip op. at 12 n.5).

“Really, it all depends.” Id. at __ (slip op. at 15).

By context, I mean the rest of the contract’s text.

And here, the text suggests a quid-pro-quo bargain

that precludes DOJ’s sole argument. 8

Start with the terms of the quid pro quo. The quid

was DOJ’s closure of its investigation into the two

I do not rely on extrinsic evidence outside the contract’s four

corners because “closed” is unambiguous when read in context.

See Iberdrola Renewables, Inc. v. FERC, 597 F.3d 1299, 1304

(D.C. Cir. 2010) (“If a contract is not ambiguous, extrinsic evidence

cannot be used as an aid to interpretation.”) (quoting Consolidated

Gas Transmission Corp. v. FERC, 771 F.2d 1536, 1544 (D.C. Cir.

1985)). In any event, the extrinsic evidence is something of a

wash. DOJ said it would never promise what the Realtors wanted,

and the Realtors said they would never settle without that

promise — so the extrinsic evidence just tells us that someone

was bluffing. See Maj. Op. at 4-5, 15-18.

29a

remaining policies, promised in the one-page “closing

letter” portion of the contract. The quo was the

Realtors’ surrender of the four anticompetitive policies.

That surrender was described in painstaking detail

across 15 pages. For example, the agreement required

the Realtors to immediately “undertake certain actions

and refrain from certain conduct for the purpose of

remedying the anticompetitive effects” of the four

policies. JA 162. The agreement then listed the Realtors’

“prohibited conduct,” “required conduct,” “antitrust

compliance,” and requirements for “compliance inspection.” JA 165-74 (cleaned up).

Read together, it’s apparent from the four corners of

the contract that the Realtors’ extensive commitments

about the four anticompetitive policies came at a cost

to DOJ, and this bargained-for cost is the context that

must inform the meaning of “closed.” 9

So when properly read in the context of the entire

comprehensive agreement, DOJ’s promise to close is

best understood to mean:

DOJ has closed its investigation into

two remaining policies in exchange for

the Realtors’ promise to change

four anticompetitive policies.

I again emphasize “in exchange for” — the pro in

quid pro quo — because the nature of the parties’

exchange is what moves us beyond abstract propositions like “[t]he words ‘close’ and ‘reopen’ are unRecall that none of the following contextual points are

disputed: The settlement agreement is a binding contract. Maj.

Op. at 9. The contract includes DOJ’s letter promising to close its

investigation into the two remaining policies. Id. And DOJ’s

promise to close the investigation was in exchange for the Realtors’

promise to change the four anticompetitive policies Id at 5-6.

30a

ambiguously compatible.” Maj. Op. at 12. When

construing one side’s promise in a quid pro quo, we

“avoid constructions of contracts that would render

promises illusory.” M & G Polymers USA, LLC v.

Tackett, 574 U.S. 427, 440 (2015). And here, that fundamental and well-settled contract principle means

we must construe “closed” to preclude “immediately

reopen.” See, e.g., Irwin v. United States, 57 U.S. 513,

519 (1853) (our “court can make no new contract for

the parties”).

This reading is also entirely logical. In any bargain,

you give up something in order to get something in

return. That’s what separates a contract from a commandment, and a compromise from a ukase. See

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023

(D.C. Cir. 2000) (a provision “reads like a ukase” because

it “commands,” “requires,” “orders,” and “dictates”). So

both sides of the exchange in this agreement must

have real meaning.

Under the Realtors’ reading, both do: The Realtors

gave up something (the four anticompetitive policies)

to get something (non-illusory relief from DOJ’s investigation into the two remaining policies). In contrast,

DOJ’s reading invests one side of the exchange with no

real meaning at all. It says that the Realtors gave up

something (a lot, actually) in exchange for nothing

more than a promise by DOJ to close an investigation

it could immediately reopen — in other words, for a

promise “worth nothing but the paper on which it was

written.” National Association of Realtors v. United

States, No. 21-2406, 2023 WL 387572, at *4 (D.D.C.

Jan. 25, 2023).

31a

Several counterarguments were made in DOJ’s brief

and by its exceptionally able counsel at oral argument.

But none can change this bottom line: DOJ needs you

to believe that the Realtors gave away something for

nothing.

First, DOJ says the Realtors actually did benefit

from DOJ closing the investigation, including from the

inertia that kept it closed for eight months. Sure, but

DOJ isn’t arguing for an eight-month rule; rather, it

argues that it can reopen a closed investigation

immediately. The Realtors would have received no

benefit from that. So DOJ’s theory still depends on

reading its promise as meaningless — a reading

prohibited by basic contract principles. See M & G

Polymers USA, 574 U.S. at 440; Irwin 57 U.S. at 519

Second, DOJ cites other cases where the government

reopened investigations that it previously closed. See

Maj. Op. at 13-14. But DOJ has not cited a single

precedent allowing it to reopen an investigation after

contracting to close it in exchange for consideration. It

relies instead on immaterial precedents about unilateral

promises, not binding contracts. See Marinello v.

United States, 584 U.S. 1 (2018) (describing no settlement negotiations whatsoever); J. Roderick MacArthur

Foundation v. FBI, 102 F.3d 600 (D.C. Cir. 1996)

(same); Schellenbach v. SEC, 989 F.2d 907, 910 (7th

Cir. 1993) (“Petitioner and NASD officials discussed a

settlement, but they could not agree”). 10

See also Oral Arg. Tr. at 29 (Question: “[C]an you point me

to a precedent where the Government has made a promise in

exchange for consideration to close an investigation and the Court

has said that the Government can reopen the investigation?”

DOJ: “Not in a case where we made a promise to do it . . . .”).

32a

Third, DOJ cites the “unmistakability” principle. It

disfavors interpretations that “cede a sovereign right

of the United States unless the government waives

that right unmistakably.” Maj. Op. at 12. But that

principle doesn’t apply here where DOJ did unmistakably cede its right to immediately reopen its

investigation into the two remaining policies — for the

reasons explained above.

Finally, DOJ points to a sentence in one part of

the settlement agreement that states: “No inference

should be drawn” from DOJ’s “decision to close its

investigation into these rules, policies or practices not

addressed by the consent decree.” JA 178. 11

That sentence provides no answer to the one question

in this case: Whether DOJ promised to refrain from

immediately reopening its “closed” investigation (not

whether we should “infer[]” something beyond that

promise). Once we identify the scope of DOJ’s promise,

then “under the law of contract [DOJ] was not free to

unilaterally change the terms of the settlement

agreement by adding an ambiguous sentence to a

letter designed to simply confirm that it had upheld its

side of the deal.” National Association of Realtors, 2023

WL 387572, at *5.

So much for what DOJ’s “ambiguous sentence” did

not do. As for what it did do, consider that several of

the Realtors’ policies were being challenged in court by

third parties seeking a class action verdict in excess of

a billion dollars. 12 The “ambiguous sentence” is best

Recall that the consent decree described the Realtors’ contractual obligations.

See Burnett v. National Association of Realtors, 19-cv-0332,

ECF 1294 (W.D. Mo. Oct. 31, 2023) (jury verdict awarding class

plaintiffs approximately $1.79 billion in damages against all defend12

33a

read to “inform third parties that the government had

not found one way or the other that the [two remaining

policies] were lawful.” Id. That message — if you want

to keep suing the Realtors yourselves, go for it — does

not conflict with DOJ’s promise not to immediately

reopen its own “closed” investigation.

* * *

The Antitrust Division of the Department of Justice

bargained for a binding contract. That bargain

required DOJ to close an investigation, and it did

not allow DOJ to immediately reopen the “closed”

investigation. In arguing otherwise, DOJ has invited

our court to go where no court has gone before — or at

least no court identified by DOJ.

For the sake of DOJ’s credibility, I wish it had not

done so. And for the sake of citizens who find

themselves on the other side of the bargaining table, I

wish our court had not agreed. 13

After today, behind the facade of its promise to close

an investigation, the government can lure a party into

the false comfort of a settlement agreement, take what

ants); National Association of Realtors, National Association of

Realtors Reaches Agreement to Resolve Nationwide Claims

Brought by Home Sellers (Mar. 15, 2024), https://perma.cc/86TRYBRD (Realtors announcing a $418 million settlement of the

class claims against them); Burnett, 19-cv-0332, at ECF 1399-1

(W.D. Mo. Mar 18, 2024) (judgment accepting the settlement).

Cf. Makan Delrahim, Assistant Attorney General, Antitrust

Division of the Department of Justice, Remarks at Bocconi

University in Milan (May 25, 2018), https://perma.cc/8EBM-DJFU

(“To ensure that businesses can enter contracts, make investments, and plan for the future, we must provide a stable and

predictable environment that is free of arbitrary government

action and characterized by transparent and fair procedures.”).

34a

it can get, and then reopen the investigation seconds

later.

So if you ever find yourself negotiating with the

Antitrust Division of the Department of Justice, let

today’s case be a lesson:

Buyer Beware.

35a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

————

No. 23-5065

————

NATIONAL ASSOCIATION OF REALTORS,

Appellee

UNITED STATES OF AMERICA, et al.,

————

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02406)

————

September Term, 2023

Filed on: April 5, 2024

————

Before: HENDERSON, WALKER and PAN,

Circuit Judges

————

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for

the District of Columbia and was argued by counsel.

On consideration thereof, it is

ORDERED and ADJUDGED that the judgment

of the District Court appealed from in this cause be

36a

reversed and the case be remanded for further proceedings, in accordance with the opinion of the court

filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

Date: April 5, 2024

Opinion for the court filed by Circuit Judge Pan.

Dissenting opinion filed by Circuit Judge Walker.

37a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

————

Civil Action No. 21-2406 (TJK)

————

NATIONAL ASSOCIATION OF REALTORS,

Petitioner,

UNITED STATES OF AMERICA, et al.,

————

Respondents.

MEMORANDUM OPINION

Before the Court is the National Association of

Realtors’ Petition to Set Aside, or in the Alternative

Modify, Civil Investigative Demand No. 30729, which

was issued by the Department of Justice’s Antitrust

Division. Because the civil investigative demand, or

CID, violates a settlement agreement executed by the

parties, the Court will set it aside.

I. Background

A. The Department of Justice Opens an

Investigation into the National Association

of Realtors

In 2019, the Department of Justice’s Antitrust

Division opened an investigation into certain practices

and policies of the National Association of Realtors

(“NAR”). See ECF No. 1-21 at 2. Among the NAR

policies under review were its “Participation Rule” and

its “Clear Cooperation Policy.” See ECF No. 1-7 at 2.

38a

As part of its investigation into potentially anticompetitive behavior, the Antitrust Division issued two CIDs

seeking certain information from NAR. See ECF No. 121; ECF No. 1-22. Settlement talks ensued.

B. The Parties Settle and the Department of

Justice Closes its Investigation

In 2020, NAR and the Antitrust Division began

negotiating a potential settlement. See ECF No. 1-5.

At first, the Antitrust Division would not agree that

any of NAR’s policies, current or otherwise, would

be free from further investigation for a decade. See

ECF No. 20-1 at 6; ECF No. 20-2 at 2. NAR pushed

back, seeking reprieve from investigation. See ECF No.

1-6 at 2. After exchanging several rounds of emails

negotiating settlement terms, the Antitrust Division

sent a draft consent judgment including a proposed

reservation-of-rights clause, which in sum declared

that nothing in the judgment would limit the

government’s ability to investigate NAR’s policies in

the future. ECF No. 1-5 at 18.

NAR responded by striking that clause. ECF No.

1-5 at 18. NAR later explained that it would not agree

to a consent decree without written assurances—

specifically, a letter—confirming that the Antitrust

Division had “closed its investigation” into the Participation Rule and Clear Cooperation Policy and providing that NAR “had no obligation” to respond to the

still-pending CIDs. ECF No. 1-7 at 2, 19. After a call

about the letter that would “give[] [NAR] relief from

the investigations,” the Antitrust Division conceded,

agreeing to confirm in writing that it would close its

investigation into those policies. ECF No. 1-8 at 2, 4;

see also ECF No. 20-6 at 3 (“[W]e will close our

investigation into NAR’s Participation Rule as a part

of this settlement.”). But the Antitrust Division would

39a

not confirm that certain changes to the policies

satisfied its concerns or that it would refrain from

challenging any future versions of the rules. See ECF

No. 20-3 at 2–3; ECF No. 20-2 at 2.

In November 2020, the Antitrust Division filed a

Complaint, Stipulation and Order, and Proposed Final

Judgment with the Court. ECF Nos. 1-9–1-12. Neither

the Complaint nor the Proposed Final Judgment

addressed the Participation Rule or Clear Cooperation

Policy. See ECF No. 1-10; ECF No. 1-12. The Proposed

Final Judgment included a reservation of rights

provision that read, “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.” ECF No. 1-12 at 16. But neither the stipulation nor the consent judgment featured a merger or

integration clause preventing other agreements from

restraining the government along these lines. See ECF

No. 1-11; ECF No 1-12.

The same day the Antitrust Division filed those

papers, it sent a “closing letter” to NAR as agreed. See

ECF No. 1-13. The letter confirmed “that the Antitrust

Division ha[d] closed its investigation into [NAR’s]

Clear Cooperation Policy and Participation Rule” and

that NAR “[a]ccordingly” had “no obligation to respond

to” the corresponding CIDs. Id. The letter contained a

“no inferences” provision, which read, “No inference

should be drawn, . . . from the Division’s decision to

close its investigation into these rules, policies or

practices not addressed by the consent decree.” Id.

40a

C. The Department of Justice Reopens its

Investigation and Reissues its CIDs

After the parties reached their settlement, NAR

began changing its policies to comply with the terms

in the Stipulation and Proposed Final Judgment. ECF

No. 1-1 at 3–4. The Participation Rule and Clear

Cooperation Policy were not a part of the Stipulation

and Proposed Final Judgment, though. Thus, those

rules “have not been changed, modified, or amended

since the Antitrust Division closed its investigation in

2020.” ECF No. 21-1 at ¶ 15.

In January 2021, as the consent judgment required,

NAR contacted the Antitrust Division to approve its

policy changes. ECF No. 1-1 at ¶ 15. After the change

in presidential administrations, the government did

not respond to NAR until April. See id. at ¶ 18. When

it did respond, rather than approving or rejecting the

rule changes, the Antitrust Division tried to renegotiate

the reservation-of-rights clause in the consent agreement.

Id. NAR was skeptical. And during later discussions,

the Antitrust Division refused to clarify whether the

change was intended to modify any aspect of the

settlement or its agreement to close its investigation

and withdraw the CIDs. See id. at ¶ 19.

NAR would not agree to any changes without

clarification of their impact on the settlement agreement, creating an impasse. See ECF No. 1-1 at 6. In

July 2021, the Antitrust Division reopened the investigations it had previously agreed to close and issued a

CID against NAR that is similar to the two CIDs

addressed in the prior settlement. See ECF No. 1-3;

ECF No. 1-23. The agency also withdrew its consent to

the Proposed Final Judgment and voluntarily withdrew

its complaint. ECF No. 1-17; ECF No. 1-18. The Antitrust

41a

Division describes these actions as a “resum[ption of]

its investigative efforts.” ECF No. 20 at 14.

In response, NAR filed the instant petition under

15 U.S.C. § 1314(b)(1)(A) to set aside the new CID as

a breach of the 2020 settlement agreement. In the

alternative, NAR requests that the Court modify the

CID, alleging excessive breadth and burdensomeness.

II. Legal Standards

Under the Antitrust Civil Process Act, the Antitrust

Division may request, through a CID, the production

of documentary material, answers to interrogatories,

or the proffer of oral testimony relevant to a civil

antitrust investigation. 15 U.S.C. § 1312(a). Any person

served with a CID may petition for an order to modify

its terms or to have it set aside “based on any failure

of [the CID] demand to comply with the provisions of

[the Antitrust Civil Process Act], or upon any constitutional or other legal right or privilege of such person.”

15 U.S.C. § 1314(b)(2). The petitioner bears the burden

of convincing the court that a CID should be set aside.

See United States v. Time Warner, Inc., 94-cv-338

(HHG), 1997 WL 118413, at *6 (D.D.C. Jan. 22, 1997);

see also United States v. R. Enters., Inc., 498 U.S. 292,

301 (1991).

CIDs must comply with the standards applicable to

grand jury subpoenas and civil discovery. 15 U.S.C.

§ 1312(c)(1); see also Time Warner, 1997 WL 118413,

at *3 (“[T]he standard for enforcement of regulatory

subpoenas is the same as that applied to grand jury

investigations.” (citing Okla. Press Pub. Co. v. Walling,

327 U.S. 186, 216 (1946)). To that end, CIDs—like

grand jury subpoenas and civil discovery—may be

subject to restrictions under a settlement agreement.

42a

Courts generally preclude civil discovery barred

by a validly executed settlement. See, e.g., Blake v.

Architect of the Capitol, No. 19-cv-3409 (TSC-RMM),

2021 WL 5990949, at *3 (D.D.C. Sep. 22, 2021) (considering whether prior settlement agreement barred

certain discovery requests). Courts also preclude the

government from compelling testimony via grand jury

subpoena when doing so conflicts with a plea or settlement agreement. See United States v. Singleton,

47 F.3d 1177, at *4 (9th Cir. 1995) (Table); In re Grand

Jury Proc., 819 F.2d 984, 987 (11th Cir. 1987); see also

In re U.S. Senate Permanent Subcomm. on Investigations,

655 F.2d 1232, 1239 (D.C. Cir. 1981) (holding that the

government could enforce a legislative subpoena through

civil contempt because “[t]he terms of the [witness’s]

plea bargain agreement plainly [did] not preclude

[Congress] from seeking to secure the testimony of

[the witness]”).

These rules track the general principle that the

government must be held to the terms of its contracts.

Regardless of the identity of the official that signs a

contract, “a settlement contract may not be unilaterally

rescinded,” and government agencies that enter into

settlement agreements are bound by their terms.

Burton v. Adm’r, Gen. Servs. Admin., No. 89-cv-2338

(NHJ), 1992 WL 300970, at *3, *6 (D.D.C. July 10,

1992); see also Village of Kaktovik v. Watt, 689 F.2d 222,

234 (D.C. Cir. 1982) (Greene, J., concurring in part

and dissenting in part) (“There is no question that a

settlement agreement is a contract which, like any

other contract, may not be unilaterally rescinded. That

principle applies to the government as to any other

party, and it applies irrespective of whether or not

the agreement has yet been approved by the court.”

(cleaned up)). Thus, a CID barred by the terms of a

settlement agreement is invalid.

43a

Additionally, even if validly issued, CIDs may be

neither “unduly burdensome [n]or unreasonably broad.”

Time Warner, Inc., 1997 WL 118413, at *6 (cleaned

up). 1

III. Analysis

Because NAR has shown that a validly executed

settlement agreement bars the CID at issue, it must

be set aside under 15 U.S.C. § 1314(b)(2).

To start, the parties dispute the terms of their settlement agreement. Thus, before the Court can enforce

that agreement, it must first determine its terms. This

task is essentially one of contract interpretation. As

the D.C. Circuit has explained, “An agreement to settle

a legal dispute is a contract. Each party agrees to

extinguish those legal rights it [had] sought to enforce

through litigation in exchange for those rights secured

by the contract.” Watt, 689 F.2d at 230.

The Court must first identify the terms of the parties’

agreement. If the parties “executed a completely

integrated written agreement, it supersedes all other

understandings and agreements with respect to

the subject matter of the agreement between the

parties, whether consistent or inconsistent.” Ryan v.

BuckleySandler, LLP, 69 F. Supp. 3d 140, 145 (D.D.C.

The Court acknowledges that the parties disagree as to

whether this is a “summary proceeding” and, in turn, over what

standards apply. See ECF No. 20 at 6 n.1; ECF No. 21 at 8–13. In

the Court’s view, this dispute is beside the point. While NAR

argues that the Antitrust Division overstates its burden to show

the CID should be set aside, the government never disputes that

the CID would be invalid if precluded by a settlement agreement.

Instead, it argues that it made no such commitment “that would

preclude the Division from investigating NAR’s potentially anticompetitive practices or issuing new CIDs in connection with any

such investigation.” ECF No. 20 at 16.

44a

2014) (cleaned up). Put another way, when an agreement

is completely integrated, that document alone controls.

See id. On the other hand, when parties execute a

“partially integrated agreement, where the writing

represents the agreement of the parties [only] with

respect to the matters stated therein, . . . a court may

consider extrinsic terms that are consistent with the

partially integrated agreement.” Id. (citations omitted).

To determine whether an agreement is completely

integrated, a court “must examine [the parties’] intent

by looking to the written contract, the conduct and

language of the parties and the surrounding circumstances.” U.S. ex rel. D.L.I. Inc. v. Allegheny Jefferson

Millwork, LLD, 540 F. Supp. 2d 165, 172 (D.D.C. 2008)

(cleaned up). “In particular, the presence of an integration clause weighs heavily in favor of a complete

integration.” Id. at 173.

Here, the settlement agreement encompasses several

written and oral commitments made by both sides in

exchange for consideration. In other words, it is not a

fully integrated written agreement—and neither party

contends otherwise. To begin, the Stipulation and

Proposed Final Judgment filed with the Court did not

include a merger or integration clause. And while that

alone may not be enough to prove partial integration,

the parties’ discussions before and after that filing

make clear that their agreement extended beyond

those documents. Indeed, the terms of the Stipulation

and Proposed Final Judgment alone did not induce an

agreement.

As recounted earlier, NAR refused to agree to the

consent decree without written assurances that the

Antitrust Division would send a letter confirming it

“closed its investigation[s]” into the Participation Rule

and Clear Cooperation Policy and that NAR “had no

45a

obligation” to respond to the still-pending CIDs.

ECF No. 1-7 at 2, 19. Only when the agency yielded to

those demands did the parties settle their dispute. See

id. The parties’ communications illustrate that the

Stipulation and Proposed Final Judgment were not

the only ways their agreement was memorialized. The

Antitrust Division’s commitment to close its investigations into the Participation Rule and Clear Cooperation

Policy and effectively rescind the CIDs—and to confirm

those actions in writing—was essential to the parties’

reaching a settlement and is consistent with the partially

integrated written agreement. So those commitments

must be considered part of the overall agreement. In

fact, the Antitrust Division’s own communications

show that the government itself understood the broader

settlement to require closure of the investigation.

See, e.g., ECF No. 20-6 at 3 (“[W]e will close our

investigation into NAR’s Participation Rule as a part

of this settlement.”).

With that common-sense interpretation of the

parties’ settlement in hand, it is not hard to conclude

that the new CID violates the agreement. Because the

agreement included the Antitrust Division’s commitment

to close its investigation into NAR’s current Participation

Rule and Clear Cooperation Policy, the government

breached the agreement by reopening the investigation

into those same rules and serving the new CID.

The word “close” means “to bring to an end.” Close,

Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/close. The word “open” means

“to begin a course or activity.” Open, MerriamWebster’s Dictionary, https://www.merriam-webster.com/

dictionary/open. Opening an investigation is the

opposite of closing one. So by reopening the same

investigation it had agreed to close, the Antitrust

46a

Division breached the settlement agreement. 2 From

there, it follows that the agreement bars enforcement

of the new CID, issued to advance the same. See

15 U.S.C. § 1312(c).

The government’s arguments otherwise do not sway

the Court. The government begins by disputing the

reach of its agreement to close its investigation. See

ECF No. 20 at 16–17. The government is correct that

NAR asked for, and it agreed to provide, a letter

confirming closure of its investigation. See ECF No.

1-8 at 2. But that does not mean, as the government

suggests, that the agreement contemplated only a

letter worth nothing but the paper on which it was

written. NAR explicitly negotiated for a letter “giv[ing

it] relief from the investigations.” ECF No. 1-8 at 4. The

letter would hardly provide such “relief” if the Antitrust

Division was free to reopen the investigations into

both the Participation Rule and Clear Cooperation

Policy and reissue substantially similar CIDs right

after closing the same. In response, the government

emphasizes that it refused to stipulate that either rule

would not be subject to another investigation in the

next decade, and it declined to give them its seal of

approval. See ECF No. 20 at 17. But these arguments

Resisting this outcome, the Antitrust Division at times

characterizes its present investigation as a “new investigation.”

See ECF No. 20 at 14, 16. But as the Court sees it, the investigation is not “new,” but a reopening—or “resumption”—of the

investigation the agency had agreed to close. The Participation

Rule and Clear Cooperation Policy have not “been changed,

modified, or amended since the Antitrust Division closed its

investigation in 2020.” ECF No. 21-1 at ¶ 15. Furthermore, the

newly issued CID is similar to the CIDs issued previously—the

same CIDs to which the agency agreed NAR need not respond.

ECF No. 1-23. Indeed, the agency itself has described its actions

as “resum[ing] its investigative efforts.” ECF No. 20 at 14.

47a

change nothing about the agreement the government

eventually struck, which required it to close its investigations into those policies. The agency’s reservations,

in context, are best understood as relating to any

future versions of the policies in question.

Nor can the “no inferences” provision in the closing

letter bear the weight the government assigns it.

As noted above, that statement reads: “No inference

should be drawn, from the Division’s decision to close

its investigation into these rules, policies or practices

[that are] not addressed by the consent decree.” ECF

No. 1-13. The Antitrust Division suggests that this

sentence reinforces its view that the closing letter did

not preclude any future investigation—even one into

the same, unchanged Participation Rule and Clear

Cooperation Policy. See ECF No. 20 at 17. Not so.

Nothing about the “no inferences” clause changes

the Court’s view of the parties’ bottom-line agreement.

The Antitrust Division might have included such a

statement in its letter for many reasons that are

consistent with the Court’s interpretation of the agreement. Most obviously, such a statement would inform

third parties that the government had not found one

way or the other that the Participation Rule and Clear

Cooperation Policy were lawful, and so similar policies

should not be assumed to pass muster. But more

fundamentally, under the law of contract the Antitrust

Division was not free to unilaterally change the terms

of the settlement agreement by adding an ambiguous

sentence to a letter designed to simply confirm that it

had upheld its side of the deal. See Keepseagle v.

Vilsack, 99-cv-3119 (EGS), 2016 WL 9455764, at *6 n.5

(D.D.C. Apr. 20, 2016) (“‘To be effective a modification

requires assent of all parties to the agreement’ because

‘there is no such thing as a unilateral modification.”

48a

(quoting Howard O. Hunter, Modern Law of Contracts

§ 5.20 (2016 ed.)).

Similarly, the Proposed Final Judgment signed by

the parties fits with the Court’s interpretation. The

reservation-of-rights clause in the document states

that nothing in that final judgment, which mentioned

neither the Participation Rule nor the Clear Cooperation

Policy, would restrain the Antitrust Division’s future

investigations. See ECF No. 1-12 at 16. As the Court

has already explained, the settlement agreement was

not contained exclusively within the four corners of

the Proposed Final Judgment. So even though that

document said nothing about future investigations, it

does not then follow that no such limits were a part of

the settlement agreement as a whole.

None of this is to say that the Antitrust Division

has agreed to never investigate NAR or some future

version or application of NAR’s Participation Rule and

Clear Cooperation Policy. The Court holds only that

the government, in committing to close an investigation into these policies one year and then reopening it

the next—when the only intervening change was that

in presidential administrations—violated the parties’

agreement. For that reason, the CID issued to further

that investigation must be set aside. 3

IV. Conclusion

At bottom, not setting aside the CID at issue would

deprive NAR of the benefit for which it bargained: the

closure of the Antitrust Division’s investigation into its

Participation Rule and Clear Cooperation Policy. The

government, like any party, must be held to the terms

Because the Court is setting aside the CID, it need not resolve

NAR’s objections to its breadth and burdensomeness.

49a

of its settlement agreements, whether or not a

new administration likes those agreements. For this

reason, the CID at issue must be set aside. A separate

order will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: January 25, 2023

50a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

————

Civil Action No. 21-2406 (TJK)

————

NATIONAL ASSOCIATION OF REALTORS,

Petitioner,

UNITED STATES OF AMERICA, et al.,

————

Respondents.

ORDER

For the reasons set forth in the Court’s accompanying Memorandum Opinion, it is hereby ORDERED

that Petitioner’s Petition to Set Aside Civil Investigative Demand No. 30729, ECF No. 1, is GRANTED.

Civil Investigative Demand No. 30729 is hereby

SET ASIDE.

This is a final appealable Order. The Clerk of the

Court is directed to close the case.

SO ORDERED.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: January 25, 2023

51a

APPENDIX E

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

————

No. 23-5065

1:21-cv-02406-TJK

————

NATIONAL ASSOCIATION OF REALTORS,

Appellee

UNITED STATES OF AMERICA, et al.,

Appellants

————

BEFORE: Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins, Katsas, Rao, Walker, Childs,

Pan, and Garcia*, Circuit Judges

————

September Term, 2023

Filed On: July 12, 2024

————

ORDER

Upon consideration of appellee’s petition for rehearing

en banc, the response thereto, and the absence of a

request by any member of the court for a vote, it is

ORDERED that the petition be denied.

Circuit Judge Garcia did not participate in this matter.

52a

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

53a

APPENDIX F

15 U.S.C. § 16. Judgments

(a) Prima facie evidence; collateral estoppel

A final judgment or decree heretofore or hereafter

rendered in any civil or criminal proceeding brought

by or on behalf of the United States under the antitrust

laws to the effect that a defendant has violated said

laws shall be prima facie evidence against such

defendant in any action or proceeding brought by any

other party against such defendant under said laws as

to all matters respecting which said judgment or

decree would be an estoppel as between the parties

thereto: Provided, That this section shall not apply to

consent judgments or decrees entered before any

testimony has been taken. Nothing contained in this

section shall be construed to impose any limitation on

the application of collateral estoppel, except that, in

any action or proceeding brought under the antitrust

laws, collateral estoppel effect shall not be given to any

finding made by the Federal Trade Commission under

the antitrust laws or under section 45 of this title

which could give rise to a claim for relief under the

antitrust laws.

(b) Consent judgments and competitive impact statements; publication in Federal Register; availability of

copies to the public

Any proposal for a consent judgment submitted by

the United States for entry in any civil proceeding

brought by or on behalf of the United States under the

antitrust laws shall be filed with the district court

before which such proceeding is pending and published

by the United States in the Federal Register at least

60 days prior to the effective date of such judgment.

Any written comments relating to such proposal and

54a

any responses by the United States thereto, shall also

be filed with such district court and published by the

United States in the Federal Register within such

sixty-day period. Copies of such proposal and any other

materials and documents which the United States

considered determinative in formulating such proposal,

shall also be made available to the public at the

district court and in such other districts as the court

may subsequently direct. Simultaneously with the

filing of such proposal, unless otherwise instructed by

the court, the United States shall file with the district

court, publish in the Federal Register, and thereafter

furnish to any person upon request, a competitive

impact statement which shall recite –

(1) the nature and purpose of the proceeding;

(2) a description of the practices or events giving

rise to the alleged violation of the antitrust laws;

(3) an explanation of the proposal for a consent

judgment, including an explanation of any unusual

circumstances giving rise to such proposal or any

provision contained therein, relief to be obtained

thereby, and the anticipated effects on competition

of such relief;

(4) the remedies available to potential private

plaintiffs damaged by the alleged violation in the

event that such proposal for the consent judgment is

entered in such proceeding;

(5) a description of the procedures available for

modification of such proposal; and

(6) a description and evaluation of alternatives to

such proposal actually considered by the United States.

55a

The United States shall also cause to be published,

commencing at least 60 days prior to the effective date

of the judgment described in subsection (b) of this

section, for 7 days over a period of 2 weeks in newspapers of general circulation of the district in which the

case has been filed, in the District of Columbia, and in

such other districts as the court may direct –

(i) a summary of the terms of the proposal for

consent judgment,

(ii) a summary of the competitive impact statement

filed under subsection (b),

(iii) and a list of the materials and documents

under subsection (b) which the United States shall

make available for purposes of meaningful public

comment, and the place where such materials and

documents are available for public inspection.

(d) Consideration of public comments by Attorney

General and publication of response

During the 60-day period as specified in subsection

(b) of this section, and such additional time as the

United States may request and the court may grant,

the United States shall receive and consider any

written comments relating to the proposal for the

consent judgment submitted under subsection (b). The

Attorney General or his designee shall establish procedures to carry out the provisions of this subsection, but

such 60-day time period shall not be shortened except

by order of the district court upon a showing that

(1) extraordinary circumstances require such shortening

and (2) such shortening is not adverse to the public

interest. At the close of the period during which such

comments may be received, the United States shall file

56a

with the district court and cause to be published in the

Federal Register a response to such comments. Upon

application by the United States, the district court

may, for good cause (based on a finding that the

expense of publication in the Federal Register exceeds

the public interest benefits to be gained from such

publication), authorize an alternative method of public

dissemination of the public comments received and the

response to those comments.

(e) Public interest determination

(1) Before entering any consent judgment proposed

by the United States under this section, the court

shall determine that the entry of such judgment is

in the public interest. For the purpose of such

determination, the court shall 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.

57a

(2) Nothing in this section shall be construed to

require the court to conduct an evidentiary hearing

or to require the court to permit anyone to intervene.

(f) Procedure for public interest determination

In making its determination under subsection (e),

the court may –

(1) take testimony of Government officials or

experts or such other expert witnesses, upon motion

of any party or participant or upon its own motion,

as the court may deem appropriate;

(2) appoint a special master and such outside

consultants or expert witnesses as the court may

deem appropriate; and request and obtain the views,

evaluations, or advice of any individual, group or

agency of government with respect to any aspects of

the proposed judgment or the effect of such judgment,

in such manner as the court deems appropriate;

(3) authorize full or limited participation in proceedings before the court by interested persons or

agencies, including appearance amicus curiae, intervention as a party pursuant to the Federal Rules of

Civil Procedure, examination of witnesses or documentary materials, or participation in any other

manner and extent which serves the public interest

as the court may deem appropriate;

(4) review any comments including any objections

filed with the United States under subsection (d)

concerning the proposed judgment and the responses of

the United States to such comments and objections;

and

(5) take such other action in the public interest as

the court may deem appropriate.

58a

(g) Filing of written or oral communications with the

district court

Not later than 10 days following the date of the

filing of any proposal for a consent judgment under

subsection (b), each defendant shall file with the

district court a description of any and all written or

oral communications by or on behalf of such defendant,

including any and all written or oral communications

on behalf of such defendant by any officer, director,

employee, or agent of such defendant, or other person,

with any officer or employee of the United States

concerning or relevant to such proposal except that

any such communications made by counsel of record

alone with the Attorney General or the employees of

the Department of Justice alone shall be excluded from

the requirements of this subsection. Prior to the entry

of any consent judgment pursuant to the antitrust

laws, each defendant shall certify to the district court

that the requirements of this subsection have been

complied with and that such filing is a true and

complete description of such communications known

to the defendant or which the defendant reasonably

should have known.

(h) Inadmissibility as evidence of proceeding before

the district court and the competitive impact statement

Proceedings before the district court under subsections (e) and (f) of this section, and the competitive

impact statement filed under subsection (b) of this

section, shall not be admissible against any defendant

in any action or proceeding brought by any other party

against such defendant under the antitrust laws or by

the United States under section 15a of this title no

constitute a basis for the introduction of the consent

judgment as prima facie evidence against such defendant

in any such action or proceeding.

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(i) Suspension of limitations

Whenever any civil or criminal proceeding is

instituted by the United States to prevent, restrain, or

punish violations of any of the antitrust laws, but not

including an action under section 15a of this title, the

running of the statute of limitations in respect to every

private or State right of action arising under said laws

and based in whole or in part on any matter complained of in said proceeding shall be suspended during

the pendency thereof and for one year thereafter:

Provided, however, That whenever the running of the

statute of limitations in respect of a cause of action

arising under section 15 or 15c of this title is

suspended hereunder, any action to enforce such cause

of action shall be forever barred unless commenced

either within the period of suspension or within four

years after the cause of action accrued.

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15 U.S.C. § 1311. Definitions

For the purposes of this chapter –

(a) The term “antitrust law” includes:

(1) Each provision of law defined as one of the

antitrust laws by section 12 of this title; and

(2) Any statute enacted on and after September 19,

1962, by the Congress which prohibits, or makes

available to the United States in any court of the

United States any civil remedy with respect to any

restraint upon or monopolization of interstate or

foreign trade or commerce;

(b) The term “antitrust order” means any final order,

decree, or judgment of any court of the United States,

duly entered in any case or proceeding arising under

any antitrust law;

conducted by any antitrust investigator for the purpose of

ascertaining whether any person is or has been

engaged in any antitrust violation or in any activities

in preparation for a merger, acquisition, joint venture,

or similar transaction, which, if consummated, may

result in an antitrust violation;

(d) The term “antitrust violation” means any act or

omission in violation of any antitrust law, any antitrust

order or, with respect to the International Antitrust

Enforcement Assistance Act of 1994 [15 U.S.C. 6201 et

seq.], any of the foreign antitrust laws;

(e) The term “antitrust investigator” means any attorney

or investigator employed by the Department of Justice

who is charged with the duty of enforcing or carrying

into effect any antitrust law;

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(f) The term “person” means any natural person,

partnership, corporation, association, or other legal

entity, including any person acting under color or

authority of State law;

(g) The term “documentary material” includes the

original or any copy of any book, record, report,

memorandum, paper, communication, tabulation,

chart, or other document, and any product of discovery;

(h) The term “custodian” means the custodian or any

deputy custodian designated under section 1313(a) of

this title;

(i) The term “product of discovery” includes without

limitation the original or duplicate of any deposition,

interrogatory, document, thing, result of the inspection

of land or other property, examination, or admission

obtained by any method of discovery in any judicial

litigation or in any administrative litigation of an

adversarial nature; any digest, analysis, selection,

compilation, or any derivation thereof; and any index

or manner of access thereto; and

(j) The term “agent” includes any person retained by

the Department of Justice in connection with the

enforcement of the antitrust laws.

(k) The term “foreign antitrust laws” has the meaning

given such term in section 12 of the International

Antitrust Enforcement Assistance Act of 1994 [15

U.S.C. 6211].

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15 U.S.C. § 1312. Civil investigative demands

(a) Issuance; service; production of material; testimony

Whenever the Attorney General, or the Assistant

Attorney General in charge of the Antitrust Division

of the Department of Justice, has reason to believe

that any person may be in possession, custody, or

control of any documentary material, or may have any

information, relevant to a civil antitrust investigation

or, with respect to the International Antitrust Enforcement Assistance Act of 1994 [15 U.S.C. 6201 et seq.],

an investigation authorized by section 3 of such Act [15

U.S.C. 6202], he may, prior to the institution of a civil

or criminal proceeding by the United States thereon,

issue in writing, and cause to be served upon such

person, a civil investigative demand requiring such

person to produce such documentary material for

inspection and copying or reproduction, to answer in

writing written interrogatories, to give oral testimony

concerning documentary material or information, or to

furnish any combination of such material, answers, or

testimony. Whenever a civil investigative demand is

an express demand for any product of discovery, the

Attorney General or the Assistant Attorney General in

charge of the Antitrust Division shall cause to be

served, in any manner authorized by this section, a

copy of such demand upon the person from whom the

discovery was obtained and notify the person to whom

such demand is issued of the date on which such copy

was served.

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(b) Contents; return date for demand for product of

discovery

Each such demand shall—

(1) state the nature of—

(A) the conduct constituting the alleged antitrust

violation, or

(B) the activities in preparation for a merger,

acquisition, joint venture, or similar transaction,

which, if consummated, may result in an antitrust

violation,

which are under investigation and the provision of law

applicable thereto;

(2) if it is a demand for production of documentary

material—

(A) describe the class or classes of documentary

material to be produced thereunder with such

definiteness and certainty as to permit such

material to be fairly identified;

(B) prescribe a return date or dates which will

provide a reasonable period of time within which

the material so demanded may be assembled and

made available for inspection and copying or

reproduction; and

shall be made available; or

(3) if it is a demand for answers to written

interrogatories—

(A) propound with definiteness and certainty the

written interrogatories to be answered;

(B) prescribe a date or dates at which time answers

to written interrogatories shall be submitted; and

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shall be submitted; or

(4) if it is a demand for the giving of oral

testimony—

(A) prescribe a date, time, and place at which oral

testimony shall be commenced; and

(B) identify an antitrust investigator who shall

conduct the examination and the custodian to

whom the transcript of such examination shall be

submitted.

Any such demand which is an express demand for any

product of discovery shall not be returned or returnable until twenty days after a copy of such demand has

been served upon the person from whom the discovery

was obtained.

product of discovery superseding disclosure restrictions

except trial preparation materials

(1) No such demand shall require the production of

any documentary material, the submission of any

answers to written interrogatories, or the giving of

any oral testimony, if such material, answers, or

testimony would be protected from disclosure

under –

(A) the standards applicable to subpenas or subpenas duces tecum issued by a court of the United

States in aid of a grand jury investigation, or

(B) the standards applicable to discovery requests

under the Federal Rules of Civil Procedure, to the

extent that the application of such standards to

any such demand is appropriate and consistent

with the provisions and purposes of this chapter.

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(2) Any such demand which is an express demand

for any product of discovery supersedes any inconsistent order, rule, or provision of law (other than

this chapter) preventing or restraining disclosure of

such product of discovery to any person. Disclosure

of any product of discovery pursuant to any such

express demand does not constitute a waiver of any

right or privilege, including without limitation any

right or privilege which may be invoked to resist

discovery of trial preparation materials, to which the

person making such disclosure may be entitled.

(d) Service; jurisdiction

(1) Any such demand may be served by any antitrust investigator, or by any United States marshal

or deputy marshal, at any place within the territorial

jurisdiction of any court of the United States.

(2) any 1 such demand or any petition filed under

section 1314 of this title may be served upon any

person who is not to be found within the territorial

jurisdiction of any court of the United States, in such

manner as the Federal Rules of Civil Procedure

prescribe for service in a foreign country. To the

extent that the courts of the United States can

assert jurisdiction over such person consistent with

due process, the United States District Court for the

District of Columbia shall have the same jurisdiction to take any action respecting compliance with

this chapter by such person that such court would

have if such person were personally within the

jurisdiction of such court.

So in original. Probably should be capitalized.

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(e) Service upon legal entities and natural persons

(1) Service of any such demand or of any petition

filed under section 1314 of this title may be made

upon a partnership, corporation, association, or

other legal entity by—

(A) delivering a duly executed copy thereof to any

partner, executive officer, managing agent, or

general agent thereof, or to any agent thereof

authorized by appointment or by law to receive

service of process on behalf of such partnership,

corporation, association, or entity;

(B) delivering a duly executed copy thereof to

the principal office or place of business of the

partnership, corporation, association, or entity to

be served; or

by registered or certified mail, return receipt

requested, duly addressed to such partnership,

corporation, association, or entity at its principal

office or place of business.

(2) Service of any such demand or of any petition

filed under section 1314 of this title may be made

upon any natural person by –

(A) delivering a duly executed copy thereof to the

person to be served; or

(B) depositing such copy in the United States

mails by registered or certified mail, return receipt

requested, duly addressed to such person at his

residence or principal office or place of business.

(f) Proof of service

A verified return by the individual serving any such

demand or petition setting forth the manner of such

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service shall be proof of such service. In the case of

service by registered or certified mail, such return

shall be accompanied by the return post office receipt

of delivery of such demand.

(g) Sworn certificates

The production of documentary material in response

to a demand served pursuant to this section shall be

made under a sworn certificate, in such form as the

demand designates, by the person, if a natural person,

to whom the demand is directed or, if not a natural

person, by a person or persons having knowledge of the

facts and circumstances relating to such production, to

the effect that all of the documentary material required by

the demand and in the possession, custody, or control

of the person to whom the demand is directed has been

produced and made available to the custodian.

(h) Interrogatories

Each interrogatory in a demand served pursuant to

this section shall be answered separately and fully in

writing under oath, unless it is objected to, in which

event the reasons for the objection shall be stated

in lieu of an answer, and it shall be submitted under

a sworn certificate, in such form as the demand

designates, by the person, if a natural person, to whom

the demand is directed or, if not a natural person, by a

person or persons responsible for answering each interrogatory, to the effect that all information required by

the demand and in the possession, custody, control, or

knowledge of the person to whom the demand is

directed has been submitted.

(i) Oral examinations

(1) The examination of any person pursuant to a

demand for oral testimony served under this section

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shall be taken before an officer authorized to administer

oaths and affirmations by the laws of the United

States or of the place where the examination is held.

The officer before whom the testimony is to be taken

shall put the witness on oath or affirmation and

shall personally, or by someone acting under his

direction and in his presence, record the testimony

of the witness. The testimony shall be taken stenographically and transcribed. When the testimony is

fully transcribed, the officer before whom the testimony

is taken shall promptly transmit a copy of the

transcript of the testimony to the custodian.

(2) The antitrust investigator or investigators conducting the examination shall exclude from the place

where the examination is held all other persons except

the person being examined, his counsel, the officer

before whom the testimony is to be taken, and any

stenographer taking such testimony. The provisions

of section 30 2 of this title shall not apply to such

examinations.

(3) The oral testimony of any person taken pursuant

to a demand served under this section shall be taken

in the judicial district of the United States within

which such person resides, is found, or transacts

business, or in such other place as may be agreed

upon by the antitrust investigator conducting the

examination and such person.

(4) When the testimony is fully transcribed, the

antitrust investigator or the officer shall afford the

witness (who may be accompanied by counsel) a

reasonable opportunity to examine the transcript;

and the transcript shall be read to or by the witness,

unless such examination and reading are waived by

See References in Text note below.

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the witness. Any changes in form or substance which

the witness desires to make shall be entered and

identified upon the transcript by the officer or the

antitrust investigator with a statement of the reasons

given by the witness for making such changes. The

transcript shall then be signed by the witness,

unless the witness in writing waives the signing, is

ill, cannot be found, or refuses to sign. If the

transcript is not signed by the witness within thirty

days of his being afforded a reasonable opportunity

to examine it, the officer or the antitrust investigator

shall sign it and state on the record the fact of the

waiver, illness, absence of the witness, or the refusal

to sign, together with the reason, if any, given therefor.

(5) The officer shall certify on the transcript that the

witness was duly sworn by him and that the

transcript is a true record of the testimony given by

the witness, and the officer or antitrust investigator

shall promptly deliver it or send it by registered or

certified mail to the custodian.

(6) Upon payment of reasonable charges therefor,

the antitrust investigator shall furnish a copy of the

transcript to the witness only, except that the

Assistant Attorney General in charge of the Antitrust

Division may for good cause limit such witness to

inspection of the official transcript of his testimony.

(7)(A) Any person compelled to appear under a

demand for oral testimony pursuant to this section

may be accompanied, represented, and advised by

counsel. Counsel may advise such person, in confidence,

either upon the request of such person or upon

counsel’s own initiative, with respect to any question

asked of such person. Such person or counsel may

object on the record to any question, in whole or in

part, and shall briefly state for the record the reason

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for the objection. An objection may properly be made,

received, and entered upon the record when it is

claimed that such person is entitled to refuse to

answer the question on grounds of any constitutional or other legal right or privilege, including the

privilege against self-incrimination. Such person

shall not otherwise object to or refuse to answer

any question, and shall not by himself or through

counsel otherwise interrupt the oral examination. If

such person refuses to answer any question, the

antitrust investigator conducting the examination

may petition the district court of the United States

pursuant to section 1314 of this title for an order

compelling such person to answer such question.

(B) If such person refuses to answer any question

on grounds of the privilege against self-incrimination, the testimony of such person may be

compelled in accordance with the provisions of

Part V of title 18.

(8) Any person appearing for oral examination

pursuant to a demand served under this section

shall be entitled to the same fees and mileage which

are paid to witnesses in the district courts of the

United States.

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15 U.S.C. § 1313. Custodian of documents, answers

and transcripts

(a) Designation

The Assistant Attorney General in charge of the

Antitrust Division of the Department of Justice shall

designate an antitrust investigator to serve as custodian

of documentary material, answers to interrogatories,

and transcripts of oral testimony received under this

chapter, and such additional antitrust investigators as

he shall determine from time to time to be necessary

to serve as deputies to such officer.

(b) Production of materials

Any person, upon whom any demand under section

1312 of this title for the production of documentary

material has been duly served shall make such material

available for inspection and copying or reproduction to

the custodian designated therein at the principal place

of business of such person (or at such other place as

such custodian and such person thereafter may agree

and prescribe in writing or as the court may direct,

pursuant to section 1314(d) 1 of this title) on the return

date specified in such demand (or on such later date as

such custodian may prescribe in writing). Such person

may upon written agreement between such person and

the custodian substitute copies for originals of all or

any part of such material.

(1) The custodian to whom any documentary material,

answers to interrogatories, or transcripts of oral

testimony are delivered shall take physical possession

thereof, and shall be responsible for the use made

See References in Text note below.

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thereof and for the return of documentary material,

pursuant to this chapter.

(2) The custodian may cause the preparation of such

copies of such documentary material, answers to

interrogatories, or transcripts of oral testimony as

may be required for official use by any duly authorized official, employee, or agent of the Department of

Justice under regulations which shall be promulgated by the Attorney General. Notwithstanding

paragraph (3) of this subsection, such material,

answers, and transcripts may be used by any such

official, employee, or agent in connection with the

taking of oral testimony pursuant to this chapter.

(3) Except as otherwise provided in this section,

while in the possession of the custodian, no documentary material, answers to interrogatories, or

transcripts of oral testimony, or copies thereof, so

produced shall be available for examination, without

the consent of the person who produced such

material, answers, or transcripts, and, in the case of

any product of discovery produced pursuant to an

express demand for such material, of the person

from whom the discovery was obtained, by any

individual other than a duly authorized official,

employee, or agent of the Department of Justice.

Nothing in this section is intended to prevent

disclosure to either body of the Congress or to any

authorized committee or subcommittee thereof.

(4) While in the possession of the custodian and

under such reasonable terms and conditions as the

Attorney General shall prescribe, (A) documentary

material and answers to interrogatories shall be available for examination by the person who produced

such material or answers, or by any duly authorized

representative of such person, and (B) transcripts of

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oral testimony shall be available for examination by

the person who produced such testimony, or his

counsel.

(d) Use of investigative files

(1) Whenever any attorney of the Department of

Justice has been designated to appear before any

court, grand jury, or Federal administrative or

regulatory agency in any case or proceeding, the

custodian of any documentary material, answers to

interrogatories, or transcripts of oral testimony may

deliver to such attorney such material, answers, or

transcripts for official use in connection with any

such case, grand jury, or proceeding as such attorney

determines to be required. Upon the completion of

any such case, grand jury, or proceeding, such

attorney shall return to the custodian any such

material, answers, or transcripts so delivered which

have not passed into the control of such court, grand

jury, or agency through the introduction thereof into

the record of such case or proceeding.

(2) The custodian of any documentary material,

answers to interrogatories, or transcripts of oral

testimony may deliver to the Federal Trade

Commission, in response to a written request, copies

of such material, answers, or transcripts for use in

connection with an investigation or proceeding

under the Commission’s jurisdiction. Such material,

answers, or transcripts may only be used by the

Commission in such manner and subject to such

conditions as apply to the Department of Justice

under this chapter.

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(e) Return of material to producer

If any documentary material has been produced in the

course of any antitrust investigation by any person

pursuant to a demand under this chapter and –

(1) any case or proceeding before any court or grand

jury arising out of such investigation, or any

proceeding before any Federal administrative or

regulatory agency involving such material, has been

completed, or

(2) no case or proceeding, in which such material

may be used, has been commenced within a reasonable time after completion of the examination and

analysis of all documentary material and other

information assembled in the course of such

investigation,

the custodian shall, upon written request of the person

who produced such material, return to such person

any such material (other than copies thereof furnished

to the custodian pursuant to subsection (b) of this

section or made by the Department of Justice pursuant

to subsection (c) of this section) which has not passed

into the control of any court, grand jury, or agency

through the introduction thereof into the record of

such case or proceeding.

(f) Appointment of successor custodians

In the event of the death, disability, or separation from

service in the Department of Justice of the custodian

of any documentary material, answers to interrogatories,

or transcripts of oral testimony produced under any

demand issued pursuant to this chapter, or the official

relief of such custodian from responsibility for the

custody and control of such material, answers, or

transcripts, the Assistant Attorney General in charge

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of the Antitrust Division shall promptly (1) designate

another antitrust investigator to serve as custodian of

such material, answers, or transcripts, and (2) transmit

in writing to the person who produced such material,

answers, or testimony notice as to the identity and

address of the successor so designated. Any successor

designated under this subsection shall have with

regard to such material, answers, or transcripts all

duties and responsibilities imposed by this chapter

upon his predecessor in office with regard thereto, except

that he shall not be held responsible for any default or

dereliction which occurred prior to his designation.

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15 U.S.C. § 1314. Judicial proceedings

(a) Petition for enforcement; venue

Whenever any person fails to comply with any civil

investigative demand duly served upon him under

section 1312 of this title or whenever satisfactory

copying or reproduction of any such material cannot be

done and such person refuses to surrender such material,

the Attorney General, through such officers or attorneys

as he may designate, may file, in the district court of

the United States for any judicial district in which

such person resides, is found, or transacts business,

and serve upon such person a petition for an order of

such court for the enforcement of this chapter.

(b) Petition for order modifying or setting aside demand;

time for petition; suspension of time allowed for

compliance with demand during pendency of petition;

grounds for relief

(1) Within twenty days after the service of any such

demand upon any person, or at any time before the

return date specified in the demand, whichever period

is shorter, or within such period exceeding twenty

days after service or in excess of such return date as

may be prescribed in writing, subsequent to service,

by any antitrust investigator named in the demand,

such person may file and serve upon such antitrust

investigator, and in the case of any express demand

for any product of discovery upon the person from

whom such discovery was obtained, a petition for an

order modifying or setting aside such demand –

(A) in the district court of the United States for

the judicial district within which such person

resides, is found, or transacts business; or

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(B) in the case of a petition addressed to an

express demand for any product of discovery, only

in the district court of the United States for the

judicial district in which the proceeding in which

such discovery was obtained is or was last pending.

(2) The time allowed for compliance with the demand

in whole or in part as deemed proper and ordered by

the court shall not run during the pendency of such

petition in the court, except that such person shall

comply with any portions of the demand not sought

to be modified or set aside. Such petition shall

specify each ground upon which the petitioner relies

in seeking such relief and may be based upon any

failure of such demand to comply with the provisions

of this chapter, or upon any constitutional or other

legal right or privilege of such person.

for production of product of discovery; grounds for

relief; stay of compliance with demand and of running

of time allowed for compliance with demand

Whenever any such demand is an express demand for

any product of discovery, the person from whom such

discovery was obtained may file, at any time prior to

compliance with such express demand, in the district

court of the United States for the judicial district in

which the proceeding in which such discovery was

obtained is or was last pending, and serve upon any

antitrust investigator named in the demand and upon

the recipient of the demand, a petition for an order of

such court modifying or setting aside those portions of

the demand requiring production of any such product

of discovery. Such petition shall specify each ground

upon which the petitioner relies in seeking such relief

and may be based upon any failure of such portions of

the demand to comply with the provisions of this

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chapter, or upon any constitutional or other legal right

or privilege of the petitioner. During the pendency of

such petition, the court may stay, as it deems proper,

compliance with the demand and the running of the

time allowed for compliance with the demand.

(d) Petition for order requiring performance by custodian

of duties; venue

At any time during which any custodian is in custody

or control of any documentary material or answers to

interrogatories delivered, or transcripts of oral testimony

given by any person in compliance with any such

demand, such person, and, in the case of an express

demand for any product of discovery, the person from

whom such discovery was obtained, may file, in the district

court of the United States for the judicial district

within which the office of such custodian is situated,

and serve upon such custodian a petition for an order

of such court requiring the performance by such custodian

of any duty imposed upon him by this chapter.

(e) Jurisdiction; appeal; contempts

Whenever any petition is filed in any district court of

the United States under this section, such court shall

have jurisdiction to hear and determine the matter so

presented, and to enter such order or orders as may be

required to carry into effect the provisions of this

chapter. Any final order so entered shall be subject to

appeal pursuant to section 1291 of title 28. Any disobedience of any final order entered under this section by

any court shall be punished as a contempt thereof.

(f) Applicability of Federal Rules of Civil Procedure

To the extent that such rules may have application and

are not inconsistent with the provisions of this chapter,

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the Federal Rules of Civil Procedure shall apply to any

petition under this chapter.

(g) Disclosure exemption

Any documentary material, answers to written interrogatories, or transcripts of oral testimony provided

pursuant to any demand issued under this chapter

shall be exempt from disclosure under section 552 of

title 5.

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APPENDIX G

U.S. DEPARTMENT OF JUSTICE

Antitrust Division

MAKAN DELRAHIM

Assistant Attorney General

Main Justice Building

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001

(202) 514-2401 / (202) 616-2645 (Fax)

November 19, 2020

VIA E-MAIL

William Burck

Quinn Emanuel Urquhart & Sullivan, LLP

1300 I Street, NW, Suite 900

Washington, DC 20005-3314

Dear Mr. Burck:

This letter is to inform you that the Antitrust Division

has closed its investigation into the National Association

of REALTORS’ Clear Cooperation Policy and Participation

Rule. Accordingly, NAR will have no obligation to

respond to CID Nos. 29935 and 30360 issued on April

12, 2019 and June 29, 2020, respectively.

No inference should be drawn, however, from the

Division’s decision to close its investigation into these

rules, policies or practices not addressed by the

consent decree.

Sincerely,

/s/ Makan Delrahim

Makan Delrahim

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APPENDIX H

JUSTICE NEWS

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE Thursday, July 1, 2021

Justice Department Withdraws from Settlement

with the National Association of Realtors

Today the Justice Department’s Antitrust Division

filed a notice of withdrawal of consent to a proposed

settlement with the National Association of Realtors

(NAR). The department has also filed to voluntarily

dismiss its complaint without prejudice. The department

determined that the settlement will not adequately

protect the department’s rights to investigate other

conduct by NAR that could impact competition in the

real estate market and may harm home sellers and

home buyers. The department is taking this action to

permit a broader investigation of NAR’s rules and

conduct to proceed without restriction.

“The proposed settlement will not sufficiently protect

the Antitrust Division’s ability to pursue future claims

against NAR,” said Acting Assistant Attorney General

Richard A. Powers of the Justice Department’s Antitrust

Division. “Real estate is central to the American economy and consumers pay billions of dollars in real

estate commissions every year. We cannot be bound

by a settlement that prevents our ability to protect

competition in a market that profoundly affects

Americans’ financial well-being.”

As the real estate industry’s leading trade association,

NAR has rules and policies that affect millions of real

estate brokers and agents and, in turn, impact millions

of American home buyers and sellers, who, according

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to reported industry data, paid over $85 billion in

residential real estate commissions last year. The

department filed a complaint and proposed settlement

on Nov. 19, 2020. The complaint alleged that NAR

established and enforced certain rules and policies

that illegally restrained competition in residential real

estate services. The proposed settlement sought to

remedy those illegal practices and encourage greater

competition among realtors, but it also prevented the

department from pursuing other antitrust claims

relating to NAR’s rules.

Under a stipulation signed by the parties and entered

by the court, the department has sole discretion

to withdraw its consent to the proposed settlement.

The proposed settlement may also be modified with

consent from the department and from NAR. The

department sought NAR’s agreement to modify the

settlement to adequately protect and preserve the department’s rights to investigate and challenge additional conduct by NAR, but the department and NAR

could not reach an agreement. Because the settlement

resolved only some of the department’s concerns with

NAR’s rules, this step ensures that the department

can continue to enforce the antitrust laws in this

important market.

Topic(s):

Antitrust

Press Release Number:

21-620

Component(s):

Antitrust Division

Updated July 1, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.