Members of the Board of Directors and staff employees of NETAR carry certain duties and responsibilities for the benefit of the organization. This Confidentiality Policy outlines some of those duties and responsibilities in accordance with the Articles of Incorporation, Bylaws and Policy Manual of NETAR (the “Governing Documents”). Board Members and staff employees will have access to Confidential Information that if furnished or made accessible to any non-board member or used in any unauthorized manner could be damaging to NETAR and its members and could result in NETAR being involved as a party litigant in expensive and protracted litigation resulting in significant monetary damages assessed against NETAR. Information
provided to the Board and staff employees which shall be considered confidential ("Confidential Information") shall include personnel, financial, contractual and membership matters and matters of a legal nature. This information shall be confidential and shall be used only for the purpose of decision making and in the governance of NETAR. Confidential Information shall be held in the strictest of confidence and no member of the Board of Directors shall, without the prior written consent of the Board Chairman or Executive Director of NETAR: (i) divulge, furnish or make accessible to any person, including any member of NETAR, or use in any manner any of the Confidential Information except as necessary for the resolution of governance issues and the decision making process of NETAR’s Board of Directors; (ii) take any action which might reasonably or foreseeably be expected to compromise the confidentiality of the Confidential Information; or (iii) fail to follow the reasonable suggestions made by the officers and directors of NETAR, from time to time, regarding the confidentiality and proprietary nature of the Confidential Information. Violations of the Confidentiality Policy may result in disciplinary action. Disciplinary action may include removal of a member from the Board of Directors and as an officer of NETAR and termination of employment of a staff employee. I acknowledge that I have received and read a copy of this Confidentiality Policy and that I am
responsible for complying with its provisions
Anti-Trust
In antitrust cases, whether criminal prosecutions or civil treble damage suits, proof against the defendant is
most likely to come from the defendant or his associates. Thus, an antitrust compliance program must not only
avoid actual violations of antitrust laws, but also avoid creating or permitting the creation of files, records,
documents, statements or conversations which might create an appearance of a violation. It is impossible, of
course, to formulate a set of guidelines to cover all situations at all times, but insofar as the principles of
antitrust compliance can be stated in specific rules, members are well advised to abide by the following rules:
Do not discuss business matters with competitors outside of your real estate firm.
At any time, in any place, or under any circumstances, do not have any personal, telephone or e-mail
conversations with competitors concerning commissions, fees, charges or any other business practices of
your real estate business or those of your firm with which you are associated. At associations or board
meetings, confine discussions to topics of association or board business directly involved in the purpose of
the organization and the meeting.
Written communication must be clear and explicit.
When you discuss a real estate transaction or the superiority of your business practices over your business
competitors, talk only to your broker or associates in the firm with which you are associated. Regardless of
how carefully you may phrase your letter or memorandum, things look much different in writing than they
sound when spoken between knowledgeable people. Of course, financial and economic data sometimes
must be written, but in many instances, any information relevant to business or legal relations can be
communicated by talking and talking only to those who have a legitimate justification for receiving the
information you are transmitting. More than one antitrust defendant has had his letter, correspondence,
memoranda and written notes admitted in evidence against him for purposes for which the writer never
intended.
Do not talk unless you know who you're talking to and what you're talking about.
In any business, complete candor among trusted business associates is necessary. It is not necessary,
however, to tell everyone your business. Inform only those who need to know such matters as how and in
what manner commission or fee contracts were negotiated, how much business you're doing, what your
business prospects are, how many and which properties you have sold, and anything else which might be
of interest to someone investigating your business for a reason you know nothing about. If you receive a
telephone call from anyone who refuses to identify himself or herself or who begins what amounts to a
probing cross-examination about your business practices, terminate the conversation as quickly and
courteously as possible. With ever-improved recording devices, it is well to make it a rule in discussing
business matters to speak as if you were being recorded.
Do not deceive yourself or let anyone else deceive you into believing that any transgression of the antitrust
laws has little risk involved.
The federal government possesses extensive investigatory powers, such as grand juries and civil
investigation subpoena, as well as ingenious and dedicated investigators. Also, in private litigation, parties
have litigation discovery tools to examine corporate or firm records and documents and to compel
testimony. Even though an antitrust violator may not keep records, its competitors or the injured parties
may. Unexpected records such as telephone bills, expense accounts, a secretary's notes, engagement
calendars or a forgotten written report may be uncovered. Also, your computer's hard drive may be the
source of potential information even when you think the information has been erased.
Do not use such terms as "Please Destroy When Read", "For Your Eves Only", "No Copies" or similar terms
and phrases.
Experience has demonstrated that even if no copies are made, the original of such documents eventually
end up in somebody's file. Even when marked "personal and confidential", the document is usually
retained by the recipient and eventually filed. When an antitrust investigation is under way or documents
are produced on a civil investigative demand or in private antitrust litigation, such terms and phrases are
red flags for the investigator or opposing counsel.
Do not at any time use any of the words and phrases which NETAR designates as dangerous.
Since such statements are so dangerous, they need to be emphasized here along with some other similar
words and phrases:
• "We would like to charge a lower commission, but the board has a rule..."
• "This is the rate that all REALTORS® charge."
• "The MLS will not accept a listing for less than 120 days."
• "Before you list with XYZ Realty, you should know that nobody is going to work on their listings."
• "If John Doe is really professional (or ethical) he would have joined the board."
• “The board requires that all REALTORS® force their salespeople to join."
• "The best way to deal with John Doe is to boycott him.", or “We don't worry about John Doe; we
just don't show his listings."
• "If you valued your services as a professional, you wouldn't cut your commissions."
• "If X is going to cut his commissions, we'll just pay him less on splits."
• "No board member will accept a listing for less than 90 days."
• "X is the going rate in this area."
• "We have agreed that any commission below X is unfair.”
• "Something has got to be done about that company; nobody can charge such a low commission
and make a living."
• "That price-cutter has no business being a member of the board."
• "You will not get a lower commission from a REALTOR®."
If in doubt, consult.
No compliance program or manual can spell out all of the answers to questions which may arise.
Situations are bound to arise which create doubt. If you do have doubts about the legal wisdom of any
board or business practice, procedure or activity, consult your board executive officer, the broker under
whose license you work or legal counsel knowledgeable about antitrust matters.
Without clearance: Don't Do It.
If neither the board executive officer, an executive officer of your firm or legal counsel will give clearance to
a proposed business deal or activity with antitrust implications—don't do it.
Under NETAR's policy, antitrust compliance is not a choice, it is a command. The risks are too high for any real
estate broker to remain part of an organization which fails to enforce its antitrust compliance program. Lawyers
can help with designating compliance guidelines or advising on antitrust compliance matters when they arise,
but in the final analysis it will be NETAR and its NETAR Directors, MLS Directors and proxy holders, Professional
Standard Committees and Membership Committees who will have to act as the first line of defense against the
costs and consequences inherent in failure of antitrust compliance.
However, it remains the responsibility of every member of NETAR to support and implement this Antitrust
Compliance Program and demonstrate that REALTORS® are true to that which they profess to believe, the free
enterprise system is the best ever devised to secure our economic and personal freedom.
Officers, Directors, and all volunteers, staff and contract consultants shall review and sign a “Anti-Trust Compliance” policy, to be maintained on file, not less than annually in conjunction with the start of the Association’s fiscal year.
The Board of Directors of NETAR adopted the following policies and procedures regarding potential antitrust violations and strongly recommends that each member of NETAR agree to abide by these policies and procedures.
In antitrust cases, whether criminal prosecutions or civil treble damage suits, proof against the defendant is most likely to come from the defendant or his associates. Thus, an antitrust compliance program must not only avoid actual violations of antitrust laws, but also avoid creating or permitting the creation of files, records, documents, statements or conversations which might create an appearance of a violation. It is impossible, of course, to formulate a set of guidelines to cover all situations at all times, but insofar as the principles of antitrust compliance can be stated in specific rules, members are well advised to abide by the following rules:
Do not discuss business matters with competitors outside of your real estate firm.
At any time, in any place, or under any circumstances, do not have any personal, telephone or e-mail conversations with competitors concerning commissions, fees, charges or any other business practices of your real estate business or those of your firm with which you are associated. At associations or board meetings, confine discussions to topics of association or board business directly involved in the purpose of the organization and the meeting.
Written communication must be clear and explicit.
When you discuss a real estate transaction or the superiority of your business practices over your business competitors, talk only to your broker or associates in the firm with which you are associated. Regardless of how carefully you may phrase your letter or memorandum, things look much different in writing than they sound when spoken between knowledgeable people. Of course, financial and economic data sometimes must be written, but in many instances, any information relevant to business or legal relations can be communicated by talking and talking only to those who have a legitimate justification for receiving the information you are transmitting. More than one antitrust defendant has had his letter, correspondence, memoranda and written notes admitted in evidence against him for purposes for which the writer never intended.
Do not talk unless you know who you're talking to and what you're talking about.
In any business, complete candor among trusted business associates is necessary. It is not necessary, however, to tell everyone your business. Inform only those who need to know such matters as how and in what manner commission or fee contracts were negotiated, how much business you're doing, what your business prospects are, how many and which properties you have sold, and anything else which might be of interest to someone investigating your business for a reason you know nothing about.
If you receive a telephone call from anyone who refuses to identify himself or herself or who begins what amounts to a probing cross-examination about your business practices, terminate the conversation as quickly and courteously as possible. With ever-improved recording devices, it is well to make it a rule in discussing business matters to speak as if you were being recorded.
Do not deceive yourself or let anyone else deceive you into believing that any transgression of the antitrust laws has little risk involved.
The federal government possesses extensive investigatory powers, such as grand juries and civil investigation subpoena, as well as ingenious and dedicated investigators. Also, in private litigation, parties have litigation discovery tools to examine corporate or firm records and documents and to compel testimony. Even though an antitrust violator may not keep records, its competitors or the injured parties may. Unexpected records such as telephone bills, expense accounts, a secretary's notes, engagement calendars or a forgotten written report may be uncovered. Also, your computer's hard drive may be the source of potential information even when you think the information has been erased.
Do not use such terms as "Please Destroy When Read", "For Your Eves Only", "No Copies" or similar terms and phrases.
Experience has demonstrated that even if no copies are made, the original of such documents eventually end up in somebody's file. Even when marked "personal and confidential", the document is usually retained by the recipient and eventually filed. When an antitrust investigation is under way or documents are produced on a civil investigative demand or in private antitrust litigation, such terms and phrases are red flags for the investigator or opposing counsel.
Do not at any time use any of the words and phrases which NETAR designates as dangerous.
Since such statements are so dangerous, they need to be emphasized here along with some other similar words and phrases:
• "We would like to charge a lower commission, but the board has a rule..."
• "This is the rate that all REALTORS® charge."
• "The MLS will not accept a listing for less than 120 days."
• "Before you list with XYZ Realty, you should know that nobody is going to work on their listings."
• "If John Doe is really professional (or ethical) he would have joined the board."
• “The board requires that all REALTORS® force their salespeople to join."
• "The best way to deal with John Doe is to boycott him.", or “We don't worry about John Doe; we just don't show his listings."
• "If you valued your services as a professional, you wouldn't cut your commissions."
• "If X is going to cut his commissions, we'll just pay him less on splits."
• "No board member will accept a listing for less than 90 days."
• "X is the going rate in this area."
• "We have agreed that any commission below X is unfair.”
• "Something has got to be done about that company; nobody can charge such a low commission and make a living."
• "That price-cutter has no business being a member of the board."
• "You will not get a lower commission from a REALTOR®."
If in doubt, consult.
No compliance program or manual can spell out all of the answers to questions which may arise. Situations are bound to arise which create doubt. If you do have doubts about the legal wisdom of any board or business practice, procedure or activity, consult your board executive officer, the broker under whose license you work or legal counsel knowledgeable about antitrust matters.
Without clearance: Don't Do It.
If neither the board executive officer, an executive officer of your firm or legal counsel will give clearance to a proposed business deal or activity with antitrust implications—don't do it.
Under NETAR's policy, antitrust compliance is not a choice, it is a command. The risks are too high for any real estate broker to remain part of an organization which fails to enforce its antitrust compliance program. Lawyers can help with designating compliance guidelines or advising on antitrust compliance matters when they arise, but in the final analysis it will be NETAR and its NETAR Directors, MLS Directors and proxy holders, Professional Standard Committees and Membership Committees who will have to act as the first line of defense against the costs and consequences inherent in failure of antitrust compliance.
However, it remains the responsibility of every member of NETAR to support and implement this Antitrust Compliance Program and demonstrate that REALTORS® are true to that which they profess to believe, the free enterprise system is best devised to secure our economic and personal freedom.
