MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this copyright infringement and antitrust case are: (1) a motion for summary judgment filed by Counterclaim Defendant the National Association of Realtors ("NAR") (ECF No. 410); and (2) three motions to seal filings in connection with the motion for summary judgment (ECF Nos. 412, 424, 430). The issues have been fully briefed and the court now rules, and no hearing is necessary. Local Rule 105.6. For the following reasons, NAR's motion for summary judgment will be granted. The three motions to seal will be denied without prejudice to renewal within fourteen (14) days.

I. Background

The factual and procedural background of this action has been extensively documented in previous opinions, thus only a brief summary of those facts relevant to the instant motion for summary judgment is necessary. (See ECF Nos. 34, 64, 159, 180-1, 239, 351). The Metropolitan Regional Information Systems, Inc. ("MRIS") brought a copyright infringement action against American Home Realty Network, Inc. ("AHRN") and Jonathan J. Cardella, AHRN's Chief Executive Officer, on March 28, 2012.1 (ECF No. 1). MRIS offers an online fee-based "multiple listing service" (MLS) to real estate brokers and agents. Subscribers upload their real estate listings to the MRIS Database and agree to assign to MRIS the copyrights in each photograph included in those listings.

AHRN is a "San Francisco real estate brokerage referral services and technology startup that provides information to home buyers and sellers, identifying the real estate agents best suited to assist them in purchasing or selling properties in their local market on a nationwide basis." (ECF No. 167 ¶ 6). AHRN takes listing data from online database compilers like MRIS and makes it directly available to consumers on its "real estate referral" website. Specifically, AHRN owns and operates www.neighborcity.com ("NeighborCity"), which connects potential buyers with real estate agents based on the types of properties in which a buyer is interested. Jonathan Cardella declared:

(ECF No. 410-6 ¶ 9). Mr. Cardella described the AgentMatch service as follows:

(Id. ¶ 4) (emphasis added). If a consumer becomes interested in a property displayed on NeighborCity and requests additional information, AHRN seeks to arrange a referral of that customer to a real estate agent. (ECF No. 411-3, at 9). If the referral results in a closed transaction, AHRN seeks a thirty (30) percent referral fee. (ECF No. 411-1, at 9, Cardella, depo). MRIS claimed that AHRN had displayed on its website real estate listings containing copyrighted photographs taken from the MRIS Database.

After MRIS brought its complaint against AHRN for copyright violations, AHRN brought counterclaims against MRIS, Does # 1-25, and the National Association of Realtors ("NAR"), alleging, inter alia, violations of the Sherman Act, 15 U.S.C. § 1 et seq. Ralph Holmen, Associate General Counsel of the NAR, provided the following description of NAR:

(ECF No. 410-2 ¶ 2). In addition to NAR, there are 54 state and territorial associations, as well as approximately 1,400 local associations consisting of real estate professionals. (Id. ¶ 4). NAR publishes a Handbook on Multiple Listing Policy, which serves as a guide for member associations of realtors in their operation of MLSs. (Id. ¶ 6). The Handbook includes model rules, policies, and best practices established by NAR's Board of Directors. According to Mr. Holmen, MLSs choose whether to adopt NAR's model rules and policies. (Id.). MLSs that adopt and conform to all mandatory rules and policies are entitled to coverage under NAR's errors and omissions professional liability insurance policy. Additional facts will be presented in the analysis section below.

AHRN filed first amended counterclaims against MRIS and NAR, and they both moved to dismiss. After Judge Williams issued several opinions (ECF Nos. 159 & 239), and AHRN was granted leave to file second amended counterclaims (ECF No. 167),2 counts I (Maryland unfair competition) and III (Sherman Act § 1) against MRIS and NAR remained the only counterclaims. The remaining counterclaims against MRIS were dismissed by memorandum opinion and order issued on March 10, 2014. (ECF Nos. 351, 352, 355). On September 12, 2014, MRIS and AHRN filed a proposed permanent injunction and final order, which reflects, inter alia, that MRIS and AHRN have agreed to dismiss with prejudice all pending claims between them. The permanent injunction and final order was entered on September 15, 2014. (ECF No. 420). Consequently, what remains in the case are two counterclaims against NAR: (1) unfair competition in violation of Maryland law (count I); and (2) violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (count III).

NAR moved for summary judgment on September 5, 2014. (ECF No. 410. AHRN opposed the motion (ECF No. 422), and NAR replied (ECF No. 429). The parties also filed motions to seal filings in connection with the summary judgment motion. (ECF Nos. 412, 424, 430). On November 24, 2014, NAR filed a notice of supplemental authority, which, among other things, informed the court that a district court in Minnesota granted the motion for summary judgment on AHRN's antitrust counterclaim against the Regional Multiple Listing Service of Minnesota ("RMLS") (Case No. 12-0965, D.Minn.). (See ECF No. 432). As NAR acknowledges in the notice, however, the memorandum opinion granting summary judgment was filed under seal, and NAR indicates that it does not have it. It would be up to NAR to intervene in the case in Minnesota to try to attempt to access the sealed memorandum opinion and there is no indication that it has done so.3

II. Standard of Review

A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Once a properly supported motion for summary judgment is filed, the nonmoving party is required to make a sufficient showing on an essential element of that party's claim as to which that party would have the burden of proof to avoid summary judgment. Celotex, 477 U.S. at 322-23.

Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson, 477 U.S. at 249 (1986), the Supreme Court explained that, in considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a "scintilla" of evidence in support of the non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252.

A "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).

III. Analysis

A. NAR's Motion for Summary Judgment

Count III of the second amended counterclaims alleges a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Section 1 prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations." "This provision has been interpreted to preclude only restraints that are `unreasonably restrictive of competitive conditions.'" Imaging Center, Inc. v. Western Maryland Health Systems, Inc., 158 F.App'x 413, 418 (4th Cir. 2005) (quoting Cont'l Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 508 (4th Cir. 2002)). To establish a violation of Section 1 of the Sherman Act, a plaintiff must prove two elements: (1) a contract, combination, or conspiracy; (2) that imposed an unreasonable restraint of trade.4 Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002).

The Fourth Circuit elaborated on the two elements in Imaging Center, Inc., 158 F.App'x at 418:

The Supreme Court has long held that "certain concerted refusals to deal or group boycotts are so likely to restrict competition without any offsetting efficiency gains that they should be condemned as per se violations of § 1 of the Sherman Act." Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 290 (1985) (citing cases). Group boycott cases to which the Supreme Court has applied this approach typically involve joint efforts to disadvantage competitors by "`either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle.'" Id. at 294 (quoting L. Sullivan, Law of Antitrust 261-62 (1977)).

The parties disagree about the appropriate standard of review in antitrust cases. The Supreme Court of the United States has specified what a plaintiff must show to avoid summary judgment on a Sherman Act § 1 claim:

Matsushita Elec. Indus. Co., 475 U.S. at 587-88. Although the court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party, antitrust law "limits the range of permissible inferences from ambiguous evidence," such that "conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Id. at 588. The Matsushita standard has been applied in cases alleging pricefixing and illegal restraints of trade such as the alleged agreement to boycott at issue here. See, e.g., In re Titanium Dioxide Antitrust Litigation, 959 F.Supp.2d 799, 820 (D.Md. 2013) (applying Matsushita standard on summary judgment to allegations of price-fixing); Merck-Medco Managed Care, LLC v. Rite Aid Corp., 201 F.3d 436, 1999 WL 691840 (4th Cir. 1999) (unpublished table opinion) (applying Matsushita standard on summary judgment to group boycott allegations). "Although it is clear that the Matsushita standard governs whether granting summary judgment is proper, it is equally clear that the particular facts of each case determine how high a burden that standard imposes." In Re Titanium Dioxide Antitrust Litigation, 959 F.Supp.2d at 821. Judge Bennett's explanation of the appropriate standard of review in antitrust cases is instructive:5

In re Titanium Dioxide Antitrust Litig., 959 F.Supp.2d at 821.

1. Concerted Action

The Fourth Circuit explained in North Carolina State Bd. of Dental Examiners v. F.T.C., 717 F.3d 359, 372 (4th Cir. 2013):

A party may demonstrate an agreement by direct evidence or circumstantial evidence, or a combination of the two. West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 99-100 (3d Cir. 2010); Merck-Medco Managed Care, LLC, 1999 WL 691840, at *5; Laurel Sand & Gravel, Inc., 924 F.2d at 542 (noting that when there is no direct evidence of antitrust activity, "[a]n agreement to restrain trade may be inferred from other conduct.").

AHRN argues that together with brokers and agents around the country, NAR engaged in a group boycott in violation of Section 1 of the Sherman Act. As will be seen, none of the evidence — even when viewed in the aggregate — support group boycott or concerted action.

a. Litigation-Related Activity

First, in support of its group boycott theory, AHRN references litigation-related activity purportedly spearheaded by NAR, including a multitude of cease and desist letters that it received from MLSs around the country beginning in November 2011 around the time of the Anaheim meeting when NAR purportedly first became aware of AHRN and NeighborCity. (ECF No. 422, at 12; see also ECF Nos. 422-2 through 422-18, cease and desist letters). The gist of the letters is that AHRN has been reproducing and distributing copyrighted works relating to real estate listings on its website, NeighborCity.com, without authorization; the letters request that AHRN immediately remove copyrighted information from its website or risk legal action. AHRN cites multiple email exchanges between Laurie Janik and MLSs and their legal counsel regarding an appropriate course of action against AHRN. (See ECF No. 422, at 10-11; ECF Nos. 423-4 through 423-8; ECF No. 422-33, at 5, email from John Mosey of Northstar MLS, ("[Y]es it is Laurie [Janik] he refers to. I spoke with her last week and she is very interested in having the NAR take a lead role in a filing again [AHRN.]"). AHRN states:

(ECF No. 422, at 10-11). Ms. Janik provided deposition testimony to explain the rationale for NAR providing funding to support a lawsuit against AHRN in January 2012:6

(ECF No. 422-1, at 11-12).

NAR asserts that "the Court has already held that activity relating to incidents of litigation such as cease and desist letters [is] immune from liability." (ECF No. 411, at 37). In the June 10, 2013 opinion adjudicating NAR's and MRIS's motions to dismiss the first amended counterclaims filed by AHRN, Judge Williams held that "Counterclaim-Defendants are [] entitled to Noerr-Pennington immunity from AHRN's § 1 claims to the extent they are based on the filing of this litigation and the incidents of that litigation."7 (ECF No. 159, at 28) (emphasis added). Later in the opinion, Judge Williams specified: "[i]t is not sufficient to allege that Counterclaim-Defendants agreed to enforce their copyrights against AHRN; MRIS and NAR are immunized from such a claim for the reasons discussed above." (Id. at 30). AHRN argues that Noerr-Pennington immunity protects parties from litigation based on their petitioning the court for redress, and that the court's prior ruling that AHRN could not assert antitrust claims against MRIS for having instituted this lawsuit is inapplicable to NAR, who did not institute a copyright infringement lawsuit. (ECF No. 422, at 24). AHRN contends that "[h]ad AHRN's claims against NAR rested on incidents of litigation by NAR against AHRN in an attempt to petition the government, then the Court no doubt would have stated that NAR was due Noerr-Pennington immunity." (Id.) (emphasis added).

The Fourth Circuit rejected a similar argument to the one AHRN lodges here in Balt. Scrap Corp. v. David J. Joseph Co., 237 F.3d 394, 400 (4th Cir. 2001). Plaintiff in that case argued that "Noerr-Pennington protects litigants only, not third parties who covertly funded the lawsuit." Id. The Fourth Circuit remarked that "PRE is not so restrictive as to protect only the litigant from later antitrust liability."8 See also Hosp. Building Co. v. Rex Hospital, 691 F.2d 678 (4th Cir. 1982) (non-litigants who caused a government entity to file litigation entitled to jury charge of Noerr-Pennington immunity). The Fourth Circuit further reasoned:

Balt. Scrap Corp., 237 F.3d at 401 (emphasis added).

Here, too, any support received by MRIS from NAR to institute the lawsuit against AHRN to protect copyrighted materials in no way affected the legitimacy of the copyright claims. In any event, regardless of the applicability of Noerr-Pennington immunity to NAR, AHRN's reliance on any litigationrelated activity by NAR to support the group boycott theory is misplaced. There is nothing unlawful about NAR supporting MLSs in considering legal action against AHRN, who it believed was unlawfully misappropriating information related to real estate listing on its own website without a license authorizing access to such information. As NAR argues, "[t]hat NAR communicated with representatives of MLSs about AHRN has never been in dispute. That fact does not, however, create a triable issue as to whether NAR orchestrated a conspiracy to boycott AHRN." (ECF No. 411, at 35); see, e.g., Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 227 (4th Cir. 2004) ("At most, the MCAP meeting shows contact between two independent economic actors, but `mere contacts and communications, or the mere opportunity to conspire, among antitrust defendants is insufficient evidence [of] an anticompetitive conspiracy.'" (quoting Cooper v. Forsyth County Hosp. Authority, Inc., 789 F.2d 278, 281 (4th Cir. 1986))).9

b. Direct Evidence

AHRN argues that it has raised a genuine dispute of material fact as to direct evidence of a group boycott, relying on a single conversation between Paulette Carroll, a broker, and a representative of NeighborCity. "Direct evidence is extremely rare in antitrust cases and is usually referred to as the `smoking gun.'" Trigon Healthcare, Inc., 367 F.3d at 226. Direct evidence in the § 1 antitrust context is "explicit and requires no inferences to establish the proposition or conclusion being asserted." Id. The "direct evidence" AHRN offers to show group boycott is by no measure a "smoking gun" and is ambiguous at best. Specifically, AHRN relies on the following exchange between Ms. Carroll and Alex Gilbert, an AHRN representative, as direct evidence:

(ECF No. 423-13, at 2-3) (emphases added).

The above phone conversation that AHRN relies on as direct evidence of concerted action falls far short of the standard that it be "explicit and require no inferences." See Golden Bridge Technology, Inc. v. Motorola, Inc., 547 F.3d 266, 271 (5th Cir. 2008) ("Direct evidence explicitly refers to an understanding between the alleged conspirators, while circumstantial evidence requires additional inferences in order to support a conspiracy claim."). Nowhere in the call does Ms. Carroll identify an explicit agreement orchestrated by NAR to encourage brokers and/or agents not to deal with AHRN. Indeed, as NAR argues, the NeighborCity representative — and not Ms. Carroll — mentioned the national association — and Ms. Carroll stated that they were advised out of their office not to take referrals from AHRN. (See ECF No. 429, at 14). Indeed, when asked whether the national association was in contact with the broker and advised it not to work with AHRN, Ms. Carroll stated that she was "not sure what the connection is." She also stated that the broker had the option not to take referrals from AHRN considering the copyright infringement lawsuit. See, e.g., Golden Bridge Technology, Inc., 547 F.3d at 272 ("Viewing the evidence favorably to GBT, the emails do reveal a common dislike for CPCH among some of the Appellees and other companies. However, common dislike is not the same as an explicit understanding to conspire, so we accordingly review GBT's claim under the stricter standard required for circumstantial evidence."); cf. Tunica Web Advertising v. Tunica Casino Operators Ass'n, Inc., 496 F.3d 403, 410 (5th Cir. 2007) (finding that email communications show conspiracy because they contain direct evidence stating that the parties entered into a "gentlemen's agreement" not to deal with another company).

Moreover, Ms. Carroll gave deposition testimony stating that NAR never advised her not to accept referrals from AHRN. Specifically, she stated that her husband, a real estate agent and business partner, advised her to stop working with NeighborCity. (ECF No. 410-51, at 3). She stated: "We felt it was not in our best interest to work with Neighborhood City because of a potential lawsuit. We decided that we did not want to jeopardize our career, our license or be involved in any type of legal matter." (Id.). Ms. Carroll stated during her deposition that she has "never had contact with NAR at any level," only with NAR's lawyers in the instant litigation. (Id. at 4). Ms. Carroll explained the phone call with the AHRN representative:

(ECF No. 410-51, at 5) (emphases added). Consistent with her deposition testimony, Ms. Carroll submitted a declaration stating that "[n]o one in my brokerage has ever told me that [NAR] advised the brokerage not to do business with AHRN. I was never instructed by NAR, NorthstarMLS, or my broker that I was not to enter into referral agreements with AHRN. The decision not to accept additional referrals from AHRN was entirely my own and based on my disapproval of AHRN's use of agent listings without permission." (ECF No. 410-52 ¶ 4).

Based on the foregoing, the telephone recording on which AHRN relies as direct evidence of concerted action is ambiguous, relies on inferences of a conspiracy orchestrated by NAR, and does not establish direct evidence of a group boycott. See, e.g., Hyland v. HomeServices of America, Inc., 771 F.3d 310, 319 (6th Cir. 2014) ("Like the district court, we view Jerry McMahan's statements at the hearing as ambiguous at best and they therefore do not establish direct evidence of a conspiracy.").

c. Circumstantial Evidence

AHRN also relies on circumstantial evidence to show concerted action. To show concerted action, AHRN asserts that "NAR has encouraged regional boards of realtors to step up their efforts (1) to keep their member agents from entering into referral agreements with AHRN; [(2)] to breach or repudiate referral agreements agents have entered with AHRN; and (3) to pressure agents into demanding that their names be stricken from AHRN's list of potential referral agents." (ECF No. 167 ¶ 112). AHRN also cites an excerpt from the NAR Handbook and the Realtor Excellence Program developed by NAR as further establishing a plausible inference of a group boycott. As will be seen, none of the circumstantial evidence purporting to show concerted action establishes a plausible conspiracy and does not tend to exclude the possibility that MLSs acted independently in deciding not to deal with AHRN, motivated by their desire not to associate with a company embroiled in litigation for copyright infringement and whose business model was unappealing.

AHRN contends that it received formulaic letters from brokers repudiating previous agreements and requesting not be contacted by AHRN, purportedly at the behest of NAR. For instance, one such letter stated:

(ECF No. 422-22, at 2; see also ECF Nos. 422-23 through 422-25). AHRN essentially asks the court to infer concerted action at NAR's direction from, among other things, the fact that it received a plethora of similar correspondence from real estate professionals around the country either repudiating referral agreements or refusing to accept referrals from AHRN. AHRN does not present sufficient evidence, however, to show "that the inference of conspiracy is reasonable" in light of NAR's competing inference of independent action. Matsushita, 475 U.S. at 588. Moreover, parallel behavior alone is not enough to prove a conspiracy. See Theatre Enterprises v. Paramount Film Distributing Corp., 346 U.S. 537, 541 (1954) ("[T]his Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offense."). NAR has produced evidence that agents and brokers acted independently in refusing to deal with AHRN and for a variety of reasons. See, e.g., Golden Bridge Technology, Inc., 547 F.3d at 271 ("Independent parallel conduct, or even conduct among competitors that is consciously parallel, does not alone establish the contract, combination, or conspiracy required by § 1"); Twombly, 550 U.S. at 554 ("[A]t the summary judgment stage a § 1 plaintiff's offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently.").

Specifically, NAR provides declarations from MLS representatives stating that they have not entered into any kind of agreement with any other MLS or NAR or any other party not to deal with AHRN and NAR has not instructed or encouraged them not to deal with or license data to AHRN. (See ECF Nos. 410-53 through 410-65). One such MLS representative declares that he "reached out directly and only to AHRN when [he] learned that NeighborCity was displaying FMLS listing content without authorization." (ECF No. 410-54 ¶ 8) (emphasis added). The declarations reflect that MLSs and other real estate professionals decided not to deal with AHRN for a multitude of independent reasons, including the fact that AHRN voluntarily relinquished its membership in MLSs around the country, yet continued to display MLS data on the NeighborCity website. (See, e.g., ECF No. 410-56 ¶ 3 ("Around the beginning of 2011, CREN continued an audit of all IDX feeds and determined that AHRN was still displaying CREN listings, even though it was no longer a member. I continued to monitor the site and discovered th[at] AHRN was continuing to post new CREN listings even though CREN was no longer sending AHRN an IDX feed."); see also ECF No. 411-19 ("I have no desire to work with neighborhood city. As long as you[']r[e] stealing data from MLS[s] around the country[,] I have no intention of paying you for a referral, why should I? You don't pay my MLS [] that brings you the leads in the first place. Remove me from your mailing list immediately.")). Many real estate professionals chose not to deal with AHRN because they found the terms of the proposed referral agreement unacceptable. (See ECF No. 410-64 ¶ 6 ("On February 28, 2012, I sent Mr. Miller an email, declining AHRN's proposal for a custom license, as we found the terms proposed by AHRN to be unacceptable, particularly given the broad rights to use MLSLI's data that the proposed license would grant AHRN."); ECF No. 411-22, at 2 ("After reviewing your agreement (which is not available until you agree to accept it), I have many issues with the terms and will not allow my agents to participate."); ECF No. 411-23, at 2 ("Please remove me from your referral list. I was not able to read the terms and conditions before I signed up. I don't agree with them."); ECF No. 411-24 ("I do not pay ANYONE 30% and the property is sold! I am in business to make money not support you!") (emphasis in original)). Other MLSs found the information on the NeighborCity website misleading or inaccurate and refused to deal with AHRN for that reason. (See ECF No. 411-26, at 2 ("Remove all profiles from agents affiliated to Huntley Estates. The one you have of me specifically is GROSSLY incorrect! . . . Your site is deceitful to say the least."); ECF No. 411-27 ("I have some huge concerns over the misrepresentation, lies, and slander I've seen regarding your profile you have set up for me on neighborcity."); ECF No. 411-28 ("Your website is very out of date. You have people listed as being with my firm who are not even licensed anymore.")); see also ECF Nos. 411-29 through 411-31).

AHRN also references a purported conversation between a real estate agent and an AHRN representative as also evidencing a conspiracy when examined in conjunction with the other evidence cited. Specifically, AHRN relies on notes taken by an AHRN employee, Shannon Burns, which purport to reflect a telephone exchange with Kent Meister, a real estate agent from Minnesota. Her notes indicate:

(ECF No. 422-27, at 2) (emphasis added). Even assuming this transcription purporting to show what Mr. Meister expressed on the call were admissible, all this transcription indicates is that a real estate agent did not want to be contacted by AHRN until the lawsuits were resolved and that some Board contacted his firm about AHRN's lawsuit and/or persistent communications regarding referrals. Whether the reference to the Board means NAR also is ambiguous, and the court cannot extrapolate as much from the above transcription. Even assuming NAR contacted Mr. Meister or his agency about AHRN, there is nothing unlawful about sharing information regarding the lawsuit against AHRN. See, e.g., Cooper, 789 F.2d at 281 ("Indeed, the federal courts consistently have recognized that mere contacts and communications, or the mere opportunity to conspire, among antitrust defendants is insufficient evidence from which to infer an anticompetitive conspiracy."); see also Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 295 n.30 (5th Cir. 1988) (noting that "a trade association is not by its nature a `walking conspiracy[,]' its every denial of some benefit amounting to an unreasonable restraint of trade" and that the mere exchange of information, or even consciously parallel action, is insufficient to establish a conspiracy under § 1).

Any reliance by AHRN on excerpts from the NAR handbook to show group boycott also is misplaced. The portion of the NAR handbook relied upon by AHRN states:

(ECF NO. 167 ¶ 117; ECF No. 423-3, at 19, NAR Handbook). As NAR argues, this provision "addresses only demands by someone who is not an MLS participant for direct access to the MLS data. It has nothing to do with whether an MLS may license data to thirdparties, like AHRN, who are not members of the MLS." (ECF No. 411, at 31). Thus, this excerpt from the NAR Handbook, even when considered in conjunction with all of the other evidence that AHRN offers, does not establish a common scheme designed to achieve an unlawful objective. Indeed, it is uncontested that AHRN voluntarily surrendered its participation in various MLSs for financial reasons, losing the right to obtain MLS data. (See ECF No. 410-11, at 3, Cardella depo.).

Finally, AHRN contends that "[t]he course of discovery has produced evidence that suggests that NAR created a program, named the Realtor Excellence Program (REP), to compete directly with AHRN. Given the identical purpose of the two agent rating systems, a reasonable jury could find that the creation of REP was designed to push AHRN out of the market in furtherance of the NAR led boycott." (ECF No. 422, at 37). Through its AgentMatch software system, AHRN offers performance metrics, rankings, and statistics regarding real estate agents to match consumers to the "best agent" for their needs. (See ECF No. 422-31, at 4-15, Cardella depo). AHRN's evidence purporting to show that the Realtor Excellence Program, a pilot program, was created by NAR as part of the group boycott to compete with AHRN's AgentMatch program is ephemeral. AHRN relies primarily on an email from Gregg Larson, the CEO of Clareity Consulting, in which he summarized his communications with Jonathan Cardella, CEO of AHRN, and referenced the AgentMatch program:

(ECF No. 423-4, at 3) (emphasis added). Nothing about this correspondence suggests that NAR created the Realtor Excellence Program to compete with AHRN; if anything, the email shows that Gregg Larson thought that licensing or buying AgentMatch was worth considering.

Laurene Janik provided the following deposition testimony regarding how the Realtor Excellence Program came into existence:

(ECF No. 410-4, at 13) (emphases added). This deposition testimony suggests that the idea for REP as a pilot program had nothing to do with AHRN. Indeed, Ms. Janik further testified that in her mind, there was "[n]o connection whatsoever" between the implementation of REP and the communications she was having with various individuals regarding NeighborCity. (Id. at 16). She stated that NeighborCity did not come up in any of her discussions with representatives of associations or brokers or agents when discussing REP.

AHRN argues in its opposition that "REP was designed to replicate the features of AgentMatch, but was marketed through NAR and as a way for members of NAR to protect their reputation." (ECF No. 422, at 38). AHRN provides no evidentiary support for this assertion, which is wholly speculative. Aside from the single email from Gregg Larson discussed above, AHRN has not identified anything else on the record establishing that NAR created REP as part of the group boycott to compete directly with AgentMatch. AHRN cites emails between Ms. Janik and others showing regular communications about REP, but the emails show that NAR was taking certain steps to roll out this pilot program, not that it was designed to compete with AgentMatch. (See ECF Nos. 422-28 through 422-30); see, e.g., Matsushita, 475 U.S. at 588 ("[C]onduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." (citing Monsanto, 465 U.S. at 764)). Indeed, in one such email, Ms. Janik informs the group of a meeting time to discuss the quality service certification program and references Larry Romito, whom she credited in her deposition as having developed the program which became of interest to NAR. (See ECF No. 423-16); see, e.g., Merck-Medco, 1999 WL 691840, at *15 ("We must avoid the danger of an inevitable competition chilling result that would occur should a low quantum of proof be required before a party may harness the power of the Sherman Antitrust Act against facially, legitimate, procompetitive business practices.").

Based on the foregoing, all of the evidence viewed together does not create a reasonable inference of concerted action and group boycott. Thus, judgment will be entered in favor of NAR on the only two remaining counterclaims for violation of Section 1 of the Sherman Act and unfair competition under Maryland law.10

B. Motions to Seal

The parties filed three motions to seal concerning their filings related to the motion for summary judgment. (See ECF Nos. 412, 424, 430). The motions are insufficient and will be denied without prejudice to the filing of properly supported motions.

The Fourth Circuit recently reminded us that:

Doe v. Public Citizen, 749 F.3d 246, 265-66 (4th Cir. 2014). In addition, Local Rule 105.11 requires the party seeking sealing to include "(a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protection."

The parties in this case were advised at least once before that "[t]he burden is on the party seeking confidential treatment to justify it" and that the party seeking to seal documents must justify the motion, provide redacted portions of documents that can be filed if that is possible, and consider alternatives to sealing. (See ECF No. 355, at 41, March 10, 2014 memorandum opinion). Nevertheless, the motions to seal contain only boilerplate recitations, citing the Protective Order and the "attorney's eyes only" designations on the applicable documents. The submissions indicate that the parties seek to seal in their entirety their memoranda in connection with the motion for summary judgment and multiple exhibits. The parties have made no attempt to redact portions of the filings as opposed to sealing the documents in their entirety. See Visual Mining, Inc. v. Ziegler, No. PWG 12-3227, 2014 WL 690905, at *5 (D.Md. Feb. 21, 2014) (denying motion to seal when the only justification was that the documents are "confidential" under a court-approved Protective Order); Under Armour, Inc. v. Body Armor Nutrition, LLC, No. JKB-12-1283, 2013 WL 5375444, at *9 (D.Md. Aug. 23, 2013) (denying motions to seal where "[t]he parties . . . provided only the barest support for the motions, usually relying on the protective order issued in th[e] case" and failed to "provide `specific factual representations' to justify their argument"); Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 577 n.18 (D.Md. 2012) ("In their motion to seal, Plaintiffs state only that they seek to seal the exhibits pursuant to the confidentiality order, an explanation insufficient to satisfy the `specific factual representations' that Local Rule 105.11 requires."). Indeed, it is not at all clear why all of the memoranda and many exhibits should be sealed in their entirety from the public.

For its part, NAR states it does not necessarily agree with all of the documents it has submitted for sealing, but has moved to seal nonetheless because of AHRN's confidentiality designations. (See ECF No. 412, at 4). In response to AHRN's motion to seal — which also erroneously relies exclusively on the confidentiality and "attorney's eyes only" designations as justifications for sealing — NAR states that it agrees with AHRN's motion only insofar as it seals to keep sealed Exhibits PP, QQ, and RR (ECF Nos. 422-28 through 422-30). Citing ECF No. 405, NAR submits that "[t]he Court already has determined that Exhibits PP, QQ, and RR contain confidential information that support sealing, having previously granted NAR's motion to seal those documents." (ECF No. 425, at 2). ECF No. 405 is a paperless order approving a motion to seal, but it is not clear at all why Exhibits PP, QQ, and RR need to be sealed in their entirety. Based on the foregoing, the parties may resubmit their motions to seal, justifying any sealing or proposed redactions. In the meantime, the summary judgment submissions will remain temporarily under seal. If the parties do not timely renew their motions, the sealed filings will be unsealed.

Finally, the court will not undertake to determine whether any portion of this Memorandum Opinion will be filed under seal. Accordingly, the Memorandum Opinion will be filed under seal temporarily, and the parties are directed to review it and request jointly within fourteen (14) days from this memorandum opinion any necessary redactions that should be made before it is released to the public docket.

IV. Conclusion

For the foregoing reasons, NAR's motion for summary judgment will be granted. The three motions to seal will be denied.

A separate order will follow.