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5 hours ago
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The National Association of Realtors (NAR) is poised to decide the fate of its controversial Clear Cooperation Policy (CCP) in the coming weeks. And the decision comes under the shadow of a potential legal challenge.
Michael Ketchmark, the lead plaintiffs’ counsel in the Gibson commission lawsuit against real estate brokerages, told Inman News that his firm is closely monitoring NAR’s vote and will determine its next steps based on the outcome.
“It’s my expectation that after this meeting, when this comes to a NAR vote overall, that they’ll do the right thing and remove that policy and let the free market continue to work,” Ketchmark said. “If they refuse to do so … we’ll take the depositions of the people involved and figure out exactly why they did that.”
Gibson is a class-action lawsuit filed by the same attorney who handled the now-settled Sitzer-Burnett case. It accused NAR and several major real estate brokerages of conspiring to artificially inflate the commissions of agents representing sellers, a violation of federal antitrust law.
At the end of October, several of the defendants saw their settlements receive final approval. And in January, the remaining defendants — including Berkshire Hathaway Energy, Windermere Real Estate and Hanna Holdings — filed responses to claims made in the Gibson suit.
Adopted in May 2020, CCP requires brokers to list properties on a multiple listing service (MLS) within one business day of signing a listing agreement. Supporters argue it ensures fair housing opportunities, while critics claim it restricts homeowners’ rights to market their properties as they choose.
CCP provisions are designed to prevent so-called pocket listings, or properties that are listed off market and not advertised to the general public.
What’s next?
While NAR has already settled its part in the Gibson lawsuit, Ketchmark emphasized that individual brokers involved in upholding CCP could still face legal scrutiny.
“Whoever is voting to continue and enforce this rule, if we believe that it is done with anti-competitive goals in mind, we will take their depositions and hold them accountable,” he told Inman.
Ketchmark dismissed concerns that repealing the policy could lead to large brokerages withholding listings from platforms like Zillow and Realtor.com, making it harder for consumers to access listings in one place.
“I have more faith in the free market than the people who are making arguments like that,” he said.
He also rejected NAR’s fair housing justification for CCP, saying the trade group has a history of implementing “anti-competitive rules designed to hurt consumers and homebuyers.”
NAR confirmed that its evaluation of the policy is nearly complete and a decision expected “in the coming weeks.” But it remains unclear whether NAR’s leadership team, comprised of eight top executives and brokers, will be the ones who vote exclusively. The decision could also include the trade group’s larger executive committee, which has 71 members.
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