The fate of the Clear Cooperation Policy (CCP) remains uncertain, with further discussions scheduled for next month. During their recent bi-annual meeting on September 12th and 13th, 2024, the MLS Technology and Emerging Issues Advisory Board engaged in extensive deliberations about the CCP, but no definitive decisions were reached. NAR has announced that the Advisory Board will add an additional session to the schedule to continue to discuss these important issues.
The Clear Cooperation Policy, which mandates REALTORS® to list properties on NAR-affiliated MLSs within one day of signing the listing agreement, is under scrutiny from the Department of Justice (DOJ), which has revived its investigation into the association’s rules. NAR has announced plans to appeal a court decision allowing the DOJ’s inquiry to continue. The discussion has also reached emergency status because of a Clear Cooperation Lawsuit scheduled to go to trial in November.
WAV Group has learned that more than 88 brokers representing 200,000 real estate agents may be forced to lodge a class action case against NAR using the DOJ arguments to protect themselves from future direct litigation from the DOJ if this action is not addressed. Moreover, the Private Listing Service, PLS.com, now called theNLS.com(currently not operational) is re-submitting their litigation arguing that the Clear Cooperation Policy is effectively a group boycott against the PLS MLS system. California Regional MLS, BrightMLS, and MRED have all settled with PLS.
A source close to RISMedia who is familiar with NAR’s processes and legal strategy suggested the Advisory Board’s decision to postpone action may be driven by a desire to consult with additional experts or groups to thoroughly evaluate potential changes to the policy. The source also noted that the Advisory Board could refer the matter to another NAR committee or task force without making a specific recommendation at this time. Brokers and MLSs who have an opinion on the matter should submit letters to the MLS Technology and Emerging Issues Advisory Board (Send to Rodney Gansho or Jason Sanchez).
WAV Group’s research showed that just over half of real estate brokers respondents would like the policy removed, mostly to avoid legal and Federal regulatory pressures. 40% of MLSs would like to see the policy reworked/made optional and another 32% would like to see the policy removed. In total, 75% of brokers and 72% of MLSs would like the policy to be reworked, made optional or removed.
NAR stated to RISMedia, “As communicated previously, these meetings are part of the ongoing process for evaluating potential MLS policy changes. Given the impact of these policies on the entire industry, robust discussion and stakeholder input are crucial. The Advisory Board, joined by members of the NAR Leadership Team, spent two days reviewing feedback and proposals regarding the Clear Cooperation Policy, optional no-commingling rule, and the Brokerage Back Office Feed. Due to the far-reaching implications of these policies, the Advisory Board will deliberate further with the Leadership Team and plans to reconvene in October to consider the next steps. We will continue to keep the industry informed of any updates.”
According to RISMedia who broke this story, if any policy changes are approved, they would typically take effect on January 1 of the following year—January 1, 2025, in this case—with an implementation period extending until March or May.
Zillow submitted a proposal to the Emerging Issues Committee to take the CCP even further, and to ban private exclusives altogether.
In WAV Group’s last post on Clear Cooperation Policy, WAV Group suggested there could be five ways to investigate 5 ways to re-work or remove the policy from adding language that clearly suggests that listing your property in the MLS is a non-exclusive requirement to discontinuing the policy.
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If you would like to discuss the latest data on Clear Cooperation and a host of other potential legal/regulatory troublespots for the industry, please register for the WAV Group “Preventing the next round of industry lawsuits” Workshop on Friday, September 20th at 1:00 pm EST, 10:00 am Pacific.
