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It seems as though the National Association of Realtors (NAR) is committed to gambling with the membership once again based on their comments at this year’s NAR NXT Conference. We discussed this in another article, but let’s revisit two glaring potential lawsuits facing members again.
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Potential class action lawsuit No. 1
Five years ago, the NAR implemented the Clear Cooperation Policy (CCP) to “level the playing field,” mandating that listings be shared with the multiple listing service (MLS) within 24 to 48 hours. While the intent was to ensure fair access for all members, this policy — with the exception of office exclusives — forces homeowners into a one-size-fits-all approach.
As I predicted last year, the days of the CCP are numbered, and change is already in motion. This is why NAR needs to pay attention to the writing on the wall if it wants to avoid multiple class action lawsuits in 2025.
Why the Clear Cooperation Policy needs to go
The Clear Cooperation Policy has drawn scrutiny recently, particularly for its potential infringement on sellers’ rights and its potential violation of antitrust laws. By forcing some homeowners to share their listings with other members, regardless of their wishes, the rule oversteps its bounds, eliminating legitimate options for sellers who prioritize privacy or exclusivity.
The current Department of Justice (DOJ) has highlighted antitrust concerns surrounding the CCP, and major players like Anywhere Real Estate and Compass have either called for the policy’s repeal or at least major changes to be made.
NAR steered well clear of the topic at the recent NXT Conference, showcasing that they are still in the “kick the can down the road” mode. Their inaction could very well put us in the crosshairs of the next class-action lawsuit. It’s not just a fight about industry practices — it’s about restoring power to homeowners.
I know what some of you are thinking: There’s a chance that the incoming presidential administration and the new DOJ may decide to drop pursuing NAR.
While that could be the case, the Clear Cooperation Policy is still ripe picking for a class action lawsuit because class action attorneys aren’t worried about the DOJ; their concern is lining up plaintiffs. When they do, it could cost NAR and its members hundreds of millions more in dollars (and a whole lot more headaches) than what they’ve already been through.
Getting rid of the CCP in some local markets is already underway. Park City Board of Realtors for example: In October, the Park City Board of Realtors in Utah informed its members that it would no longer enforce NAR’s Clear Cooperation Policy. This decision marked a significant departure from NAR’s guidelines, allowing the local MLS to operate without adhering to certain national association mandates.
The bottom line is sellers must be free to choose how their property is marketed, whether through the MLS, an exclusive brokerage, or another method. Upholding their rights is critical — not just for compliance with antitrust laws but for the trust and credibility of our industry.
Agents need to pivot
The repeal of the CCP will profoundly shift how agents operate. For years, buyer’s agents have depended on the rule to gain easy access to listings through the MLS. When the rule disappears, that access may shrink.
I predict that 20 percent of listings — a significant chunk — will remain exclusive, never appearing on the MLS. For agents heavily reliant on showing other agents’ listings, this change will feel like a wake-up call. The solution? Pivot now.
Master the listing side of the business. Listings are where the control, leverage and long-term stability in this industry lie. Invest in building the skills and strategies necessary to dominate as a listing agent.
For the foreseeable future, make this your primary focus. Your future business depends on it.
Potential class action lawsuit No. 2
Another prediction I made last year is coming true: the decoupling of MLSs from NAR. Let me explain why this is the next class action suit.
Forcing agents to join NAR to access MLS services is a classic example of illegal “tying” under antitrust laws. This practice bundles two separate products — NAR membership and MLS access — forcing agents to purchase one to obtain the other.
Such arrangements stifle competition by excluding non-NAR agents from a critical industry tool and create a monopoly-like scenario. Courts have long ruled that tying agreements, which restrict freedom of choice and limit competition, violate antitrust laws like the Sherman and Clayton Acts.
Several multiple listing services (MLSs) have recently announced that their policies would differ from local or NAR policies arising from the terms of the commission lawsuit settlement. Notable examples include:
- Bright MLS: At a RISMedia’s conference in September of 2023, Brian Donnellan, president and CEO of Bright MLS, stated: “We need to figure out how to move away—not divorce from them, but move away (from NAR),” Donnellan said. “NAR is not going to be making rules for us, I think, moving into the future.”
- Northwest MLS (NWMLS): The largest multiple listing service in the Pacific Northwest did not take part in the NAR Settlement. The organization said at the time: “NAR’s proposed settlement agreement largely duplicates the rules and practices in place in NWMLS’ service area for several years—with one notable exception: The settlement agreement eliminates compensation transparency for buyers and restrains sellers’ choice by prohibiting sellers from making offers of compensation through the MLS.”
- Saint Paul AOR/NorthstarMLS: In August, the members voted to allow licensed agents to join the MLS without having to become a member of the Association.
- Phoenix Association: Recently added what they call MLS Choice. It gives agents the ability to join the Phoenix Realtors with many of the benefits offered by Phoenix Realtors but cannot call themselves “Realtors” and will lose access to state and national association benefits, but have access to their MLS.
Why is this happening? The growing number of lawsuits, including the latest three-way membership agreement suit filed in California, is making NAR a liability for MLSs. This most recent lawsuit was filed by UHOO Real Estate Services agent John Diaz, who is representing himself in the matter.
Filed in U.S. District Court in Los Angeles, the suit names NAR, the California Association of Realtors, the Lodi Association of Realtors, and MetroList MLS as defendants. This case adds to the momentum of legal challenges questioning the necessity and legality of requiring Realtors to join multiple associations just to access the MLS.
This isn’t an isolated incident. Similar lawsuits have been filed in Michigan, Illinois (though subsequently withdrawn with plans to refile) and Pennsylvania. The Alabama Association of Realtors has also voiced concerns, urging NAR to make membership optional. This wave of lawsuits highlights how associations and MLSs are reevaluating their ties to NAR to avoid entanglement in legal challenges.
The writing is on the wall: More MLSs will follow. For agents, this means it’s critical to adapt quickly to these shifts. Focus on building a strong listing-based business, stay informed about the evolving legal landscape, and invest in continuous training to stay ahead.
3 things to focus on now
A year ago, I said this was coming, and now the collapse of the CCP and the decoupling of MLSs from NAR could be unfolding before our eyes.
Here’s what you need to do right now to stay ahead:
- Strengthen your listing game: Listings are the cornerstone of success in this new era, giving you control, leverage and opportunities to thrive.
- Stay informed: Keep a close eye on evolving NAR policies, ongoing lawsuits, and how these changes impact your market. Knowledge is power.
- Invest in training and resources: The agents who adapt fastest will lead the pack. Focus on building the skills you need to stay competitive and relevant.
This is your chance to pivot and build a strategy that positions you as a leader in these changing times.
A call to action
This is a moment of transformation in our industry, and you have a choice: adapt or fall behind. Don’t wait for the market to dictate your future. Take control.
Because in this business, the agents who adapt are the ones who win. Will you be one of them?
Editor’s note: This article was updated after publication with more clarification on MLS policies.
Darryl Davis is the CEO of Darryl Davis Seminars. Connect with him on Facebook or YouTube.
