The ongoing battle over pocket listings is continuing to intensify, with discount brokerage Assist-2-Sell now joining Compass in opposing a new off-market listing ban from Bright MLS.

The ongoing battle over pocket listings is continuing to intensify, with discount brokerage Assist-2-Sell now joining Compass in opposing a new off-market listing ban from Bright MLS.

Assist-2-Sell sent a letter to Bright MLS late last week expressing “grave concern” over the Mid-Atlantic trade organization’s new rule requiring agents to upload their properties to the multiple listing service (MLS) or face steep fines. In the letter, Assist-2-Sell’s attorney Scott Gronek argues that the policy eliminates the ability of sellers to use non-MLS marketing methods and thus “will act as a restraint of trade.”

Accordingly, Assist-2-Sell, Inc. urges Bright MLS to either abandon the Bright Off-MLS policy, or to modify the policy so that it would not prohibit any participants from continuing to offer non-MLS marketing programs,” Gronek concludes.

Assist-to-Sell sent the letter to Bright MLS on Oct. 31, two days after Compass made a similar argument in its own “pre-litigation letter” to Bright MLS. Compass called Bright MLS’s new pocket listing rule “highly problematic” and revealed that it was prepared to take legal action to fight the policy.

However, Bright MLS countered that it was not afraid of a lawsuit and would not abandon the new rule.

Assist-2-Sell’s letter — which the company provided to Inman — explicitly states that it shares Compass’ concerns about the policy.

The letter also explains that Assist-2-Sell offers multiple service options for sellers. While property owners working with the company can opt to have their homes posted to the MLS, they can also choose a “direct to buyer” program that markets homes “through media other than the MLS.” Sellers using that option pay the company a “low competitive fee,” the letter explains, and do not offer a commission to buyers’ agents.

Lyle Martin

Nevada-based Assist-2-Sell was co-founded in the late 1980s by Lyle Martin and today operates hundreds of franchises across the U.S. and Canada. It believes that its direct to buyer program “affords home sellers an opportunity to save money by potentially paying lower fees,” the letter states.

But the company also suggested that Bright MLS’s new policy could scuttle its business model.

“It appears the new Bright Off-MLS policy will prohibit Assist-2-Sell offices from continuing to offer consumers this marketing program,” the letter states.

In an email to Inman Monday, a Bright MLS spokesperson confirmed that it had received Assist-2-Sell’s letter. The spokesperson said that “the MLS exists to provide the consumer with [the] most complete and accurate information possible, regardless of what broker business model you choose.”

“It’s Bright’s view that participation in the MLS does not have a negative effect on full service discount real estate brokers,” the spokesperson continued, adding that Bright MLS doesn’t set fees and discount brokers are free to share as much or as little of their compensation as they want.

Bright MLS also previously told Inman that “we’re not going to back away from this policy.”

However, also in an email to Inman Monday, Martin wrote that “it’s tremendously disappointing to see a large organization like Bright MLS attempting to restrain or otherwise stifle the marketing programs which a participating brokerage can offer to consumers.”

Martin also said that Assist-2-Sell is still currently evaluating the impact of the policy and “prefers to avoid making threats of litigation,” though the firm hasn’t “eliminated any options for relief from consideration.”

The letter from Assist-2-Sell is just the latest development in what has turned into a surprisingly explosive debate within the industry. That debate blew up at the beginning of October when the National Association of Realtors (NAR) announced it was considering a rule that would require agents to upload their listings into their respective MLSs.

Though NAR’s rule would still allow for things like “office exclusives” that are only distributed within a brokerage, it would also prevent agents from publicizing their listings for days or weeks before actually making them available on the MLS.

NAR’s policy is still under consideration, but soon after it was announced Bright MLS revealed it had adopted a slightly edited version of the proposal as a rule for its nearly 100,000 members. That move prompted the Compass letter, and has further fueled the debate over what role pocket listings should actually have in the industry.

On one side of the debate, large organizations such as Bright MLS and Midwest Real Estate Data have both come out in favor of banning pocket listings. Some high profile industry executives such as Glenn Kelman of Redfin and Glenn Sanford of eXp World Holdings have also thrown their support behind NAR’s proposal.

But on the other side, a group of high-profile agents, at least one MLS, and of course companies like Compass and Assist-2-Sell are opposing pocket listing bans.

In Assist-2-Sell’s case, the company’s letter does not mention the threat of legal action as Compass did when it reached out to Bright MLS. However, the firm does repeatedly take issue with Bright MLS’s policy and ultimately asks for a response by the end of this week.

Read the full letter from Assist-2-Sell bellow:

Update: This post was updated after publication with additional comment from Bright MLS and Assist-2-Sell.

Email Jim Dalrymple II

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