The National Association of Realtors this week set off a fresh fray among residential brokerage players over its Clear Cooperation Policy.
The national trade group’s Emerging Issues Advisory Board met last week to evaluate the policy, which requires brokers to post listings to the MLS within one business day of marketing it to the public. The rule has been the subject of lawsuits over the past four years, with NAR arguing it protects consumers in the industry skirmish over off-market, or “pocket” listings.
Compass CEO Robert Reffkin told members of his brokerage ahead of last week’s meeting he would be attending to “formally suggest” NAR remove the policy, which he argued in an internal email obtained by The Real Deal restricts marketing options for a listing and wrongly benefits aggregators.
“Leads from your listings are then sold via aggregators, without the listing agent’s involvement,” Reffkin wrote. “Unlike listing agents, most of these aggregators are focused on selling leads, not selling homes.”
Reffkin wrote that the “[Department of Justice] is on your side” and is “actively investigating Clear Cooperation.” The department, reported to be pursuing NAR’s alleged anti-competitive behavior after opening an investigation in 2021, has previously said the rule limits home sellers’ choices and competition from new listing services.
Reffkin later turned to Instagram, saying in a post that Compass was among 88 other real estate brokerages and 200,000 real estate agents who want the group to end the policy.
The caption accompanied a screenshot of an online post by Redfin CEO Glen Kelman. Published the same day the trade group convened, the executive called pocket listings “part of our exclusionary past” and pointed to private and direct sales options on the multiple listing service as alternatives.
“The Clear Cooperation policy isn’t perfect. It still lets the agents within one brokerage share listings with one another while withholding those listings from agents at other brokerages,” Kelman wrote. “But Clear Cooperation with this loophole is better than no Clear Cooperation at all.”
But the chief executive of the aggregator was split from his brokerage counterparts. The Agency founder Mauricio Umansky also seized on the rule to air his previous issues with the rule and promise to re-file a suit that was withdrawn earlier this year.
“This should not be regulated by the National Association of Realtors or the MLSs,” Umansky said. “I am looking forward to refiling the PLS lawsuit against NAR.”
Umansky did not respond to Inman’s requests for comment on his potential filing.
In January, NAR was able to sidestep one major challenge when the PLS withdrew its case after suing the trade group following the policy rollout in 2019. Because the case was dismissed without prejudice, PLS — now known as NLS — can relitigate the case in the future.
In the meantime, a similar case brought by the Top Agents Network was resurrected after originally being struck down in 2021. The suit gained new life after an appeals court found TAN, which offers a pocket listing service, showed that it was sufficiently harmed by the anticompetitive nature of CCP.
A spokesperson for NAR said the group is “listening to the perspectives and feedback of industry participants regarding the Clear Cooperation Policy” and “open to this important ongoing dialogue.”
Kari Hamanaka contributed reporting.
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