Friday, December 1, 2006

USA v. NAR - Status conference (written 6/26/2006)

Last Tuesday (6/20/2006), Magistrate Judge Denlow held a status hearing in USA v. NAR. The government's lawyers appeared by phone. Appearing in person on behalf of NAR were in-house counsel Janik and Holman, and Jack Bierig.

NAR's counsel stated that not much had happened since the last hearing, and that no advances had been made toward settlement. DOJ counsel added that settlement was not likely.

Bierig stated that the parties would have to begin considering the nature of proof of the government's case. While the
U.S. claims that the policies at issue are anti-competitive on their face, the government, according to Bierig, has to show that these policies had anti-competitive effects in local market(s). Bierig added that presently NAR doesn't know what local markets are involved. The Court commented that it would seem logical that the parties will want to know the relevant local markets sooner rather than later. The DOJ lawyers pointed out that they already identified 11 cities where opt-outs have taken place, and that they identified third parties in more than 20 cities.

The Court stated that it would not be unfair (given that the entire country was in play) for the government to use 6 - 9 months (the period requested by the government) to conduct discovery and then identify those areas where anti-competitive effects exist. The DOJ lawyers added that they've been trying to accomplish this for the last six moths, and that they already tendered five affidavits of entrepreneurs who were discouraged by NAR's policies. In response, Bierig said that when the local markets are identified, NAR will show that the policy had pro-competitive effects.

The parties agreed to confer to attempt to reach an agreeable scheduling order, and appear again before the Court on July 11th.

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