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The National Association of Realtors is still reevaluating its Clear Cooperation policy after a meeting last week, even as pressure mounts and one prominent broker is threatening to take legal action over the anti-pocket listing rule.
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The threat of a lawsuit came late Monday night from Mauricio Umansky, co-founder and CEO of The Agency. In an Instagram post, Umansky argued that “bottom line, at the end of the day the homeowner should have the freedom to choose how he or she wants to market their home for sale. Period, end of story.”
A screenshot of Umansky’s Instagram post on Clear Cooperation.
“This should not be regulated by the National Association of Realtors or the MLSs,” Umansky said. “I am looking forward to refiling the PLS lawsuit against NAR.”
Umansky was referring to a case that began in 2020 between an entity known as The PLS.com — the letters stand for “Pocket Listing Service” — at which Umansky is a founding partner. The PLS.com was meant to create a network of exclusive listings, but alleged in its suit that NAR “controls competition” through Realtor-affiliated MLSs and has “used its control over MLSs to exclude new and disruptive market entrants to the benefit of NAR members, and the detriment of consumers.”
At the time the suit was filed, The PLS.com’s website was dormant — and it remains offline today.
In January, the suit was paused for settlement talks, and in July NAR was dismissed from the case without prejudice, meaning ThePLS.com could re-file its claims against NAR at a later date.
Inman reached out multiple times to Umansky Tuesday in an effort to gather information on how and when he might be refiling the case, but he did not respond to those requests for comment. Inman will update this story with any response it receives.
Umansky has long been a critic of banning pocket listings, saying all the way back in 2019 that ““I do believe in off-market listings. I do believe in pocket listings.” He has also grown more critical of NAR over the years and earlier this year launched a new, rival trade organization.
However, Umansky’s threat is just one part of a growing pressure campaign on NAR’s Clear Cooperation policy. The policy was adopted in 2019 and requires brokers to upload their listings to their NAR-affiliated multiple listing service within one day of marketing them. The goal was to crack down on pocket listings, which some industry members believe are exclusionary.
Last Thursday and Friday, NAR’s Emerging Issues Advisory Board — which is part of the MLS Committee — met to evaluate the policy. Compass CEO Robert Reffkin attended the meeting, posting on Instagram both before and after, about his belief that Clear Cooperation should end.
“Every home seller should have the right to choose how to market their home,” Reffkin wrote on Instagram Monday. “As fiduciaries, we must seek clients’ interests first and last. That’s why Compass and 88 real estate brokerages representing nearly 200,000 real estate professionals want NAR to end the Clear Cooperation Policy that forces every homeowner to give their listing to the MLS after one day of public marketing.”
Reffkin’s Comment on Umansky’s Instagram post.
Reffkin also commented on Umansky’s Instagram post about refiling The PLS.com suit, saying that it is “reckless for NAR to keep Clear Cooperation because it can be viewed as forcing agents to break the law.”
Umansky’s Instagram post had ultimately racked up nearly 200 comments as of Tuesday evening, with the vast majority appearing to agree with him and Reffkin that Clear Cooperation should end. The comments echo the results of a recent survey from the WAV Group, which found that “the majority” of industry professionals “want to change or remove the policy.”
Inman reached out last week to several companies that were rumored to be participating in last week’s NAR meeting, but none were willing to speak about the situation on the record.
On Monday, NAR indicated that no final decision had come out of the meeting, telling Inman via a spokesperson that the organization “is actively listening to the perspectives and feedback of industry participants regarding the Clear Cooperation Policy.”
“NAR is open to this important ongoing dialogue with the ultimate goal of helping NAR members and consumers succeed,” the spokesperson added.
Though Umansky Reffkin and others have lately been putting pressure on NAR to end Clear Cooperation, not everyone in the industry agrees with their position. In a blog post Thursday, for example, Redfin’s Glenn Kelman argued against ending the rule. Kelman’s argument was that “listing Cooperation creates an open, fair market” and that pocket listings are “exclusionary.”
EXp Realty CEO Leo Pareja also recently expressed support for the current status quo, saying at an industry event that “I fundamentally believe in organized real estate and how it functions in North America. We have a complete, accurate, liquid marketplace, which is the beauty of the MLSs.”
In addition to pressure from industry leaders, Clear Cooperation also remains a focus of the Department of Justice, which has singled out the rule as part of an investigation into NAR. The DOJ and NAR have been fighting over the feds’ right to reopen that investigation, and the fight may next be headed to the U.S. Supreme Court.
