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The National Association of Realtors’ Clear Cooperation Policy is the most hotly debated rule in the real estate industry right now, but it is nowhere to be seen at the trade group’s largest annual event.
At the end of a committee meeting of multiple listing service executives at NAR NXT in Boston Saturday, a staffer read out a question from the audience: “Why aren’t we talking about Clear Cooperation? Everybody’s talking about Clear Cooperation, but we’re not talking about it.”
The query highlighted a conspicuous omission from the event’s agenda. The CCP, which requires listing brokers to list properties in Realtor-affiliated MLSs within one business day of publicly marketing them, burst into the limelight following rule changes due to NAR’s settlement of multiple antitrust lawsuits.
Passionate detractors and backers of the pocket listing rule have been duking out its pros and cons for months. NAR’s MLS Technology and Emerging Issues Advisory Board met twice before the conference to consider changes to the rule before ultimately deciding not to recommend any changes and handing the issue over to the eight-member NAR Leadership Team.
Rodney Gansho
Asked why the Clear Cooperation Policy was not up for discussion at NAR NXT, NAR’s director of engagement, Rodney Gansho, told Inman in an interview, “We’re not moving forward with a recommendation, so what would be the point of that?”
Gansho said NAR already had “an avenue to gain feedback” and had been meeting with “various stakeholders.” Asked what that avenue was, Gansho said anyone with feedback could reach out to him or Jason Sanchez, NAR’s director of MLS engagement.
In response to the audience question about why the CCP was not being discussed on Saturday, Gansho told attendees of NAR’s Multiple Listing Issues and Policies Committee that NAR was being “very thoughtful” in how it was approaching the policy. He pointed to a letter from the Council of MLSs (CMLS) warning NAR against rushing into a decision and said the trade group was following that advice.
“If you have feedback that you want to be part of that information, please reach out to Jason, reach out to myself,” Gansho told the crowd.
“We’d love to get that information from you. I suspect that sometime in the future, we’re likely to be talking more about that and debating a recommendation or something along those lines as to how we move forward.”
In an emailed statement, a NAR spokesperson told Inman,”CCP is not on the agenda for NXT because the MLS Technology and Emerging Issues Advisory Board opted not to make a recommendation about CCP at its last meeting and turned feedback it received to the NAR Leadership Team.
“That feedback, in addition to other input we have received following the last meeting, is in evaluation as NAR considers next steps.”
Asked whether that meant the CCP is not on the agenda because NAR has decided it has enough feedback to evaluate the policy and make a decision, the spokesperson said, “[W]e continue to gather feedback through many channels on a rolling basis.”
The spokesperson directed Inman to a Realtor Magazine post that refers to NAR evaluating the CCP “with particular sensitivity.”
NAR’s annual and midyear conferences feature several meetings whose purpose is to have MLS leaders and those involved with MLS policy share ideas and communicate with each other about any policy concerns. These include MLS breakout groups, the MLS Association Executives Session, the MLS Forum and the Multiple Listing Issues and Policies Committee. At this NAR NXT, the trade group also hosted a “The Future of the MLS” panel. The CCP was not discussed at any of them.
Dionna Hall, CEO of BeachesMLS, chair of CMLS, and a member of NAR’s MLS Technology & Emerging Issues Advisory Board, confirmed to Inman in an interview that the CCP was not discussed during the MLS breakout groups, which she moderated.
Dionna Hall
“There was some pre-approved questions ahead of time that we agreed to with NAR and so we stuck to those questions instead of discussing CCP,” Hall said.
Hall noted that NAR’s legal team had put some limitations on the discussions “just making sure that we were staying within antitrust compliance.
“Obviously there’s a lot of people in that room that maybe are not up to speed as much about the things that we shouldn’t be talking about like set commissions and what have you,” Hall said.
“So we just all have to really educate ourselves when we’re moderators in there to make sure that if anybody does talk about that that we shut down that conversation quickly. Just trying to make sure we’re operating on the up-and-up.”
Moderators were trying to keep people away from antitrust violations, Hall clarified.
“What I’m talking about is violating antitrust law by having certain discussions in a room full of people,” she said.
Hall said she wasn’t sure why CCP specifically was not being addressed at the conference. But as a member of the advisory board, she said she thought that there had been a lot of discussion about the policy and as an MLS CEO, she had reached out to the brokers in her market to ask how they would like the policy to change if it were to become more flexible.
Asked whether the NAR Leadership Team had provided any update regarding its policy deliberations, Hall said no.
“I think we’re just at an impasse right now while they probably work through some surrounding issues,” she said.
Controversy around MLS policies is nothing new for NAR. Typically, when the 1.5-million-member trade group is considering changes to an MLS policy, there will formal discussion at its conferences, regardless of whether anything regarding that policy will be voted on at that conference.
Giving potential policy changes an extensive airing among the brokers and MLS executives who are most involved in the governance of the national association, sometimes over the course of multiple conferences, had previously been the trade group’s modus operandi. When the CCP was being considered in 2019 at NAR’s annual conference, discussions about the policy packed meeting rooms.
In all of 2023, for the first time in recent memory, NAR’s Multiple Listing Issues and Policies Committee did not put forward any MLS policy changes for a vote by NAR’s board of directors. This was possibly due to antitrust litigation reaching a boiling point with the trial of a case known as Sitzer | Burnett, in which a jury ultimately found NAR conspired with major real estate franchisors to inflate broker commissions.
At Saturday’s MLIP Committee meeting, Inman asked committee chair Johnny Mowad why there was no discussion of the CCP. He said, “It wasn’t business at hand” and left the interview, calling Charlie Lee, a NAR senior counsel and director of legal affairs, over. Lee directed questions about the CCP to NAR spokesperson Mantill Williams.
Asked whether the decision to not have the CCP discussed at NAR NXT this year was made on the advice of legal counsel or due to fear of legal repercussions from any talk at the event, NAR’s spokesperson provided Inman with the same statement the trade group has provided in the past in regards to questions about CCP.
“NAR will continue to evaluate CCP in the broader context of the issues facing NAR and the industry,” the statement said.
“As a national organization that represents members across the country, NAR continues to receive a range of passionate opinions about CCP. We believe any changes to policies and practices as important as CCP has to carefully weigh feedback from a wide range of members, stakeholders, and industry experts.
“With respect to CCP specifically, the organization must also consider ongoing litigation and DOJ [Department of Justice] investigations. As such, NAR will work carefully and diligently to ensure that we continue to review CCP to ensure a decision is made in such a way that is in the best interest of members and consumers.”
Asked how NAR is gathering feedback on the policy, who specifically NAR is gathering feedback from, what the NAR Leadership Team was doing to evaluate the policy and when it was expected to make a decision, NAR did not respond.
NAR Senior Counsel and Director of Legal Affairs Matt Troiani told conference attendees at the NAR NXT Risk Management Issues Committee meeting that the trade group had “added to its panel of existing outside experts and recently retained a firm to help lead” a comprehensive risk assessment of NAR’s current policies. NAR CEO Nykia Wright announced the assessment to NAR’s board at the beginning of October.
Asked whether NAR’s decision not to put CCP on the agenda at NXT was related, NAR’s spokesperson said, “No, not related.” Asked which outside experts are on the panel and which firm NAR has hired and for how long, NAR declined to comment.