In a rather intriguing twist in the ongoing commissions lawsuit, the Department of Justice (DOJ) has made some strong remarks about the Clear Cooperation Policy (CCP). Buried in a footnote on page 7 of a recent filing, the DOJ called out certain industry statements as “misleading and out of context.” This little nugget was highlighted by a National Association of Realtors (NAR) representative in response to an ELJ inquiry.
So, what’s the fuss about? The DOJ clarified that it hasn’t taken a definitive stance on whether Clear Cooperation is anticompetitive. However, it did point out that some industry players have been making claims about the DOJ’s views that aren’t quite accurate. Specifically, the DOJ noted that it hasn’t declared CCP policies as anticompetitive, except in cases where they might benefit large brokerages disproportionately.
This leaves the door open for further scrutiny, especially around private listing networks that could be seen as favoring big players. Interestingly, the DOJ didn’t name names, but it’s hard not to think of Compass CEO Robert Reffkin, who’s been quite vocal about the issue. Reffkin has been rallying his agents to capture more private listings and even hinted on Instagram that the DOJ’s investigation could lead to numerous lawsuits.
Adding to the drama, TV star and The Agency founder Mauricio Umansky has also been pushing back against CCP. Reffkin’s comments were apparently in response to a post by Umansky, making this a bit of a public showdown.
On the legal front, industry lawyer Brian Schneider sees the DOJ’s language as a positive sign, suggesting that voluntary sharing of listings is pro-competitive. However, he also warns that brokerages dominating a market need to tread carefully if they’re only sharing listings with a select few brokers. The DOJ might find that worth investigating.
Meanwhile, Compass has been busy, boasting about its 20,000 exclusive listings and reaching out to MLSs. Reffkin has been warning MLS leaders about potential litigation from enforcing Clear Cooperation, emphasizing the importance of maintaining the Office Exclusive designation.
What Does This Mean for Small Brokerages?
For small brokerages, the DOJ’s stance could be a double-edged sword. On one hand, it might level the playing field by scrutinizing practices that disproportionately benefit larger brokerages. On the other hand, small brokerages need to be cautious about how they handle their listings to avoid falling afoul of any potential investigations. Ensuring transparency and fair access to listings will be crucial.
Off-MLS Marketing: Not Just for Luxury Homes
While off-MLS marketing, also known as pocket listings, is often associated with luxury properties due to the privacy and exclusivity it offers, it can benefit various types of properties. For luxury homes, the appeal lies in discretion and targeting high-net-worth individuals. However, off-MLS marketing can also be advantageous for any property type by reducing competition and allowing for more controlled negotiations
Your Thoughts?
What are your thoughts on the DOJ’s stance and the ongoing Clear Cooperation debate? Do you think off-MLS marketing is beneficial for all property types or just luxury homes? Share your opinions and experiences in the comments below!
