Clear Cooperation lawsuit dismissed (again)
TAN, a private listing network, has agreed to drop its case against NAR after nearly five years of litigation and previous dismissals. Will this be the end?
The National Association of Realtors has one less legal headache to deal with as a long-running court battle over its Clear Cooperation Policy (CCP) comes to an end — at least for now.
The association and Top Agent Network (TAN) — which sued NAR nearly five years ago, soon after the CCP was adopted — jointly agreed on Jan. 13 to have the case dismissed without prejudice and pay their own attorney's fees, according to a filing in the U.S. District Court for the Northern District of California.
How it all started: Top Agent Network first filed its suit in May 2020, naming NAR, the California Association of Realtors and the San Francisco Association of Realtors as defendants. At the time, it was one of two private listing companies, along with ThePLS.com, to challenge NAR's newly implemented Clear Cooperation Policy. The pocket listing sites claimed the policy, which requires brokers to enter listing information on the MLS within one business day of publicly marketing a property, was anticompetitive and violated antitrust laws.
Dismissals, appeals and reconsideration: The TAN lawsuit has been dismissed and revived several times. After a district court dismissed the case in 2021, TAN appealed, and in 2023, the case was remanded back to the lower court for rehearing.
In Dec. 2023, California District Judge Vince Chhabria agreed to reopen the case, and the parties appeared to be working toward a resolution. After that process stalled, the judge approved a motion in July to reconsider key points in the case, noting that TAN had made an "adequate" case related to antitrust allegations. Most recently, the company filed a fourth amended complaint in October, dropping SFAR from the suit and zeroing in on Clear Cooperation.
Prior to this week's dismissal, TAN had requested an Oct. 2025 trial date.
Future litigation possible: The lawsuit filed by ThePLS.com — a private listings network founded by The Agency's Mauricio Umansky — has followed a similar path, but was withdrawn in January 2024. Umansky has continued to advocate for the repeal of the CCP, and in September threatened to refile his lawsuit.
As for the TAN case, this may, or may not, be the end of the road. Since the lawsuit was dismissed without prejudice, TAN has the option of refiling at a later date.
The ongoing debate over Clear Cooperation: The lawsuits are part of a broader disagreement about whether the CCP should remain in place, be revised, or be eliminated. Along with Umansky, Compass CEO Robert Reffkin is a leading critic of the policy, arguing that it poses a legal risk to the industry and stifles seller choice.
Some have countered that bigger brokerages want to scrap the policy not because it's better for consumers, but because it could give those firms more market share. That faction argues that keeping the CCP is clearly the pro-consumer choice.
NAR's leadership team is weighing the diverging industry perspectives on the policy, but has not said when it will reach a decision.