The Ten: The divisive debate over Clear Cooperation 

Editor's note: In this year of evolution — much of it mandated by legal challenges — a handful of people and themes have emerged as defining forces. Real Estate News has selected the top newsmakers of 2024, based on their industry impact and influence. They are The Ten.

When the National Association of Realtors proposed the Clear Cooperation Policy (CCP) five years ago, some members expressed concerns, but real estate leaders ultimately declared the rollout a success, noting that objections were being addressed at the local level. 

Outwardly, the industry appeared to accept the policy — which requires brokers to enter listing information in the MLS within one business day of publicly marketing the property — and its premise: To create a fair and efficient marketplace that "reinforces the pro-competitive, pro-consumer benefits that Realtors have long sought to support."

Below the surface, however, dissent surrounding the CCP continued to brew — alongside legal hurdles and a DOJ investigation. In September 2024, those rumblings grew louder and took on a more divisive tone, with industry leaders on both sides of the issue making impassioned, public arguments.

The infighting over Clear Cooperation hit a peak, ironically, soon after NAR CEO Nykia Wright asked members to stop airing their frustrations publicly. "This is a very, very critical moment," she said in August, and "we need to be debating from within." While she was responding to member dissatisfaction surrounding the NAR settlement, her comments illuminated a bigger issue: NAR members are feeling more emboldened to challenge association policies. 

The early (and ongoing) court battles 

Soon after its adoption in 2020, the CCP was challenged by two private listing networks: ThePLS.com — founded by Mauricio Umansky, founder and CEO of The Agency — and Top Agent Network (TAN). The companies, which specialized in pocket listings, filed lawsuits claiming the policy was anticompetitive and in violation of antitrust laws. 

Despite multiple setbacks, the TAN lawsuit continues, with a judge agreeing to reconsider the case in July. The suit brought by ThePLS.com was withdrawn in January 2024, but Umansky has advocated for the repeal of the CCP, and in September, threatened to refile his lawsuit.  

Perhaps an even bigger threat comes from the Department of Justice. In 2019, the DOJ initiated an antitrust investigation into NAR policies, including Clear Cooperation and the now-moot participation rule. Although NAR reached a settlement with the DOJ in 2020, the agency began a campaign to reopen the probe a year later. The matter is now in the hands of the Supreme Court.

Who is fighting for the consumer?

Clear Cooperation opponents cite legal risks — and consumer choice — as reasons to eliminate the policy. And those who want to keep it? They also claim to have consumers' best interests in mind. 

The antagonists: One of the most prominent anti-CCP figures is Compass CEO Robert Reffkin, who said keeping the policy — which he referred to as "forced cooperation" — is "reckless" because it "upholds a rule that many argue is collusive and anticompetitive."

Others say the policy, under the guise of fairness, in fact disenfranchises sellers by reducing their ability to choose how their listing is (or isn't) marketed. 

"The CCP was created to protect smaller brokerages against larger brokerages," said Phillip Cantrell, founder and CEO of Benchmark Realty. "Yet, such protection totally disregards the consumer's need. Selling their property quickly is all they care about, period." Umansky expressed a similar view on Instagram, stating, "The homeowner should have the freedom to choose how he or she wants to market their home for sale, period, end of story."

The advocates: But some leaders have countered that narrative. "The push by some large brokerages and others to remove the CCP is not about helping consumers," said NextHome CEO James Dwiggins. "They are distracting you from their real motives: to keep listings off the broader marketplace for internal promotion, recruit more agents, generate internal buyer leads, double-end deals, and boost profits or even stock prices."

NAR says the policy "ensures brokers and agents serve the best interest of their consumers and promote equal opportunity for all," and several industry leaders have shared similar sentiments:

• Clear Cooperation "creates an open, fair market," Redfin CEO Glenn Kelman wrote in a blog post, calling private listings a throwback to the industry's "exclusionary past." 

• Repealing the policy would create "inventory hoarding" and "fair housing liability," said eXp Realty CEO Leo Pareja, who spoke out in response to "nonsensical and contradictory" arguments from opponents.

• The removal of the CCP would be "bad for buyers, bad for sellers, and bad for agents, said Zillow CEO Jeremy Wacksman. "I don't really see a pro/con here. It's just bad."

• Anywhere CEO Ryan Schneider said a repeal would allow large brokerages to create "walled gardens" which would be "a disadvantage for both sellers and buyers." The company has instead proposed modifying the policy.

The future of Clear Cooperation

As NAR considers the opinions of those within the industry, it also must contend with the Department of Justice, which continues to assert its right to investigate the association and the Clear Cooperation Policy specifically. 

Balancing those concerns appears to be challenging. NAR's MLS Technology and Emerging Issues Advisory Board — the committee that developed the CCP — met in September and October to weigh "a wide range of perspectives including buyers, sellers, and real estate professionals, as well as fair housing principles," but opted to take no action on the policy, passing the issue up to NAR's leadership team.

The association has said it will "continue to evaluate CCP in the broader context of the issues facing NAR and the industry," but "there is no specific date for any further decision-making."