The transparency double standard: Ketchmark’s push to repeal CCP

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Is it just me, or does it feel like the real estate industry is under constant surveillance? As a real estate compliance consultant, I can appreciate the necessity of regulatory oversight. But in the wake of the Sitzer | Burnett settlement, this scrutiny over real estate professionals feels more intense — like every move is under a microscope.

The problem is that not all the watchers seem to have the full picture. And yet, their partial view isn’t stopping them from drawing conclusions that come with real consequences. Enter Michael Ketchmark, the lead attorney for the plaintiffs in Sitzer | Burnett. His latest remarks from the sidelines of the industry have once again rattled the pulse of Realtors.

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While I had planned to give the musical or cinematic parallels a rest for this piece, the Alfred Hitchcock film Rear Window practically jumped up and bit me, offering a perfect analogy for how limited perspectives can lead to flawed judgments.

Here’s why: It’s a story about watching, waiting and drawing conclusions from a limited vantage point. Jimmy Stewart’s character, confined to his apartment, observes his neighbors and pieces together a mystery through fragmented glimpses. While Stewart’s character was an observer seeking the truth, Ketchmark seems determined to impose his own version of events without fully understanding the broader context.

For those who may have missed it, Ketchmark has recently turned his attention to the National Association of Realtors’ (NAR) Clear Cooperation Policy (CCP) — and not subtly. He not only opposes CCP but has threatened depositions for anyone involved in its implementation.

In an interview with Inman about NAR’s upcoming vote on CCP, Ketchmark stated, “It’s my expectation that after this meeting, when this comes to a NAR vote overall, they’ll do the right thing and remove that policy and let the free market continue to work.”

Then came the more aggressive punchline, “If they refuse to do so, and the committee votes in favor of this policy, and it goes on and the changes aren’t made, we’ll take the depositions of the people involved and figure out exactly why they did that and what the motivation behind it was, and then make a decision at that point on how to proceed.”

This isn’t just advocacy; it’s an outright legal threat. The message is clear: If NAR members vote to keep CCP, they may find themselves in Ketchmark’s crosshairs. But on what basis? That’s the better question, which I’ll discuss in a moment.

The CCP debate has undoubtedly evolved over time, picking up various pro and con arguments along the way. Of course, Ketchmark’s comments, which blatantly apply legal pressure to the situation — or fuel to the fire — aim to tip the scales toward outright repeal.

But let’s take a step back. The Sitzer | Burnett lawsuit pushed for greater commission transparency, arguing that homebuyers and sellers were kept in the dark about agent compensation. The resulting settlement changes have led to a major shift in how commissions are disclosed and handled — at least for those who are doing it the right way.

Yet now, Ketchmark is advocating for the removal of CCP, a policy designed to promote listing transparency. Without CCP, listings could be kept off the MLS and hidden from broader public access. If transparency was the goal, then eliminating CCP arguably takes the industry in the opposite direction.

Adding to the irony, Ketchmark’s claim that he will depose brokers who vote in favor of CCP seems unfounded. Depositions typically occur within the scope of a lawsuit and formal discovery, not simply because an attorney disagrees with a policy voted on by a trade association.

What legal authority would even allow this? Rob Hahn, a well-known real estate strategist and commentator, called out this inconsistency in a recent video post on his podcast. Hahn aptly pointed out the absurdity of Ketchmark’s position.

Beyond Ketchmark’s threats, which he insisted were not threats, it’s important to remember that brokers are already under scrutiny through proper regulatory channels. Regulators have full authority to audit brokers and their agents, review any particular listing or transaction, and evaluate brokerage supervision. There’s no need for Ketchmark to be making threats from the bench.

In fact, many state regulators, along with the Department of Justice, are already paying closer attention to these industry issues. If there are compliance concerns, they will be addressed through appropriate regulatory actions — not through courtroom theatrics.

The reality is the issue might not even be transparency at all — it could simply be that anything associated with NAR is viewed with suspicion. Perhaps CCP is being targeted not because of its function but because it’s an NAR-mandated policy, now painted with the broad brush of alleged anticompetitive behavior.

However, in practice, CCP prevents listings from being hidden in exclusive networks, ensuring that sellers receive maximum exposure and buyers have equal access to available properties.

James Dwiggins, co-CEO of NextHome, Inc., shared a thought-provoking observation on LinkedIn: If CCP is repealed and sellers later realize their Realtor kept their listing off the MLS — perhaps to the seller’s detriment — who’s going to be first in line to represent those aggrieved sellers? Michael Ketchmark.

And Tanya Monestier, a professor at the University at Buffalo School of Law who is appealing the NAR settlement, said that eliminating CCP perfectly sets up a buyer-side lawsuit: “You’re going to end up with buyers — and particularly unrepresented buyers — completely shut out of the market. To borrow a phrase I read somewhere, the MLS is going to look an awful lot like Nordstrom Rack.”

It’s almost as if a trap is being set: Push the industry toward less transparency, then capitalize on the fallout when consumers feel misled. Additionally, the potential rise in brokerages double-ending deals could further complicate matters. But honestly, if it’s not Ketchmark, it’s some other attorney.

At the end of the day, the most important factor should be the seller’s choice — provided that choice is fully informed, and agents uphold their fiduciary duty to ensure the seller understands all options. Sellers must clearly understand the pros and cons of listing on the MLS versus keeping their property off. If they receive proper disclosure and knowingly choose a private listing, that’s their decision.

However, if there is no disclosure and listings are kept off the MLS without the seller’s full understanding, it becomes a risky practice — one that could lead to civil lawsuits and regulatory enforcement against both the agent and the responsible broker. 

CCP, perhaps with appropriate refinements, can serve as a framework to safeguard seller choice, reinforce proper disclosure, and, most importantly, establish listing transparency as the industry’s default standard.

Ultimately, this pattern of legal threats and industry policing is not only a burden for real estate professionals trying to follow the rules but also raises serious concerns. A more productive approach than threatening depositions would be engaging in meaningful dialogue that considers all perspectives, including the potential repercussions of repealing CCP entirely rather than modifying it.

Real estate professionals should be making decisions based on what benefits consumers, not out of fear of who might be deposed next. If Ketchmark were truly committed to transparency, he wouldn’t be leading the charge against a policy designed to provide just that.

Instead of threats and intimidation, perhaps the focus should be on fostering a real conversation about the future of real estate — one that prioritizes clarity, consumer choice and fairness for all involved.

NOTE: The opinions, suggestions, and recommendations contained in this discussion are based on Summer Goralik’s experience working for the California Department of Real Estate and as a real estate compliance consultant. They should not be considered legal advice or relied upon as such. You should consult with your brokerage and/or appropriate legal counsel in your jurisdiction for further clarification.