Discount franchisor Assist-2-Sell sent a strongly worded letter to the National Association of Realtors (NAR) Tuesday to say it was “shocked and dismayed” at the way the trade group has responded to its objections about a new ban on pocket listings.

The letter is part of a series of messages, obtained by Inman, in which Assist-2-Sell executives debate the Clear Cooperation Policy with NAR general counsel Katie Johnson. The Clear Cooperation Policy was approved on Nov. 11 and requires agents to put any listings that get public marketing into their respective multiple listing services (MLSs). As a result, it effectively bans most off-market and pocket listings.

The first letter in the series is from Assist-2-Sell general counsel Scott Gronek and is dated Nov. 15. It argues that the NAR policy negatively impacts the firm’s business, potentially violates antitrust rules, and was driven not by consumers but rather by MLS members themselves.

“In light of the foregoing,” Gronek concludes, “our organization is surprised by the relative hubris which was on display in connection with the enactment of these new MLS policies.”

The letter is similar to one that Assist-2-Sell previously sent to Mid-Atlantic multiple listing service Bright MLS, which in October enacted its own pocket listing ban. Both Assist-2-Sell and brokerage Compass have consistently opposed such bans, with the latter firm threatening legal action against Bright MLS over the issue.

Katie Johnson

In response to Gronek’s Nov. 15 letter, Johnson replied with an email on Nov. 26 saying that Assist-2-Sell is “misguided” in its understanding of the Clear Cooperation Policy. Johnson also said in her message that the policy is meant to prevent brokers from acting against their clients’ interest, and to make sure brokers don’t take competitors’ data without contributing their own to the MLS.

Johnson’s message additionally went point by point through various complaints and ultimately concluded that the rule “is consistent with all the laws, rules, and NAR policies, including the MLS Antitrust Compliance Policy.”

That response, however, did not satisfy Assist-2-Sell.

On Tuesday, company co-founder Lyle Martin sent Johnson another letter that begins by mentioning a positive past relationship between Assist-2-Sell and NAR.

“In light of this positive history,” Martin continues, “I am shocked and dismayed at the manner in which NAR has reacted to the series of concerns we raised about the new ‘Clear Cooperation Policy.'”

Lyle Martin

Martin goes on to argue that NAR’s rule “guts” the idea of an office exclusive — which is publicized only internally at a brokerage and is still allowed — because it prohibits public marketing. Martin says that this outcome limits consumer choice.

Ultimately, Martin concludes in the letter that he hopes NAR will focus on making “pro-competitive” changes to its policy, and that federal antitrust regulators will step in and “take appropriate action.”

In an email to Inman, Martin additionally expressed surprise at NAR’s response to his company’s complaints. He also said that Johnson “does not understand the purpose of the MLS,” which was never intended to be a “public-facing marketing vehicle but it has certainly evolved into one.” That evolution, Martin argued, has driven agents into private listing networks and fueled the growth of pocket listings.

NAR did not immediately respond to Inman’s request for comment Tuesday.

However, it’s unlikely the issue will be resolved soon. Neither NAR nor Bright MLS have shown any sign they plan to back off or significantly amend their policies. And in fact, Bright MLS has repeatedly defended its position even in the face of legal threats.

Read the full messages between Assist-2-Sell and NAR here: 

Email Jim Dalrymple II

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