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Let me start by clarifying that I’m a strong advocate for the MLS. When I was an agent listing an average of six houses a month, I always encouraged my sellers to go onto the MLS, and 95 percent of the time, they did. The other 5 percent were office exclusive listings (listings held exclusively within our office and not placed on the MLS).
I’ve always believed, and still do today, that every homeowner who wants to sell their home for the highest possible price should put their home onto the MLS system.
My opposition to the Clear Cooperation Policy (CCP) — a relatively new, five-year-old policy now drawing intense scrutiny from industry players and class-action-hungry attorneys — isn’t because I believe they are superior or should become common practice. My argument against the CCP, detailed clearly below, relates solely to concerns about the written policy itself.
Eliminating CCP is about preserving homeowners’ freedom of choice, preventing unintended negative consequences and protecting our industry from additional unnecessary litigation — not undermining the MLS, which remains unquestionably the best option for sellers.
While initially intended to protect homeowners and ensure fairness among Realtors, the CCP has instead created significant unintended consequences and serious legal vulnerabilities. Especially in the wake of NAR’s recent class-action loss, legal sharks now see blood in the water, positioning this policy as their next potential target.
It’s increasingly clear that CCP not only restricts homeowner choice and Realtor flexibility but has placed our industry directly into the crosshairs of yet another potentially devastating lawsuit. We need to consider repealing this problematic policy seriously for these reasons and others outlined below.
1. Real estate operated successfully for decades without the CCP
I keep hearing arguments from respected colleagues claiming that without CCP, brokers would suddenly start hoarding listings exclusively, harming sellers by restricting MLS exposure. However, research — verified even through AI-assisted sources — shows something different.
The original MLS system dates all the way back to 1885 in San Diego, where brokers regularly met to share listing inventories. Its modern computerized nationwide version debuted in 1981. In all those decades, there was never a nationwide epidemic of brokers withholding listings so severely that it required an extreme policy solution like CCP.
If brokers genuinely intended to harm sellers by keeping homes off the MLS, it would’ve already happened long before CCP was introduced. In reality, there’s simply no historical evidence to suggest a sudden surge of exclusive listings would emerge if CCP disappeared.
Consider this as well: the CCP is only about five years old. Encouraging homeowners to list on the MLS was never problematic before, which suggests the policy isn’t solving any genuine issue — instead, it could create new problems, notably increased litigation risk.
2. Antitrust laws
By forcing homeowners to list their properties on the MLS when hiring a Realtor, the CCP removes their freedom of choice. Attorneys looking to sue our industry could easily argue that this policy is yet another attempt by NAR to prop up membership by funneling listings — and thus commissions — to weaker or less skilled agents who depend heavily on the MLS.
This isn’t just a possibility; it’s a certainty. Michael Ketchmark, the lead attorney who successfully sued us and won, has already publicly made this exact argument against us, and he has explicitly stated he intends to depose those who vote to keep it.
Consider this: From 2018 to 2020, NAR membership stayed relatively stable — around 1.32 million in 2018 and just slightly up to 1,394,138 by 2020. But in 2021, just one year after CCP’s implementation, membership suddenly surged to 1,522,802. That’s an astonishing jump of over 125,000 new paying members in a single year, immediately following the policy’s introduction.
Whether that increase was because of the CCP or not, this rapid increase provides powerful ammunition for attorneys arguing that the real intent behind CCP was less about cooperation and more about boosting NAR membership revenue.
3. In some situations, it can benefit sellers to remain exclusive
Some might ask, “Are you saying it’s better for sellers to keep a listing exclusive rather than placing it on the MLS for all agents to access?” In some scenarios, yes — but ultimately, that decision should rest entirely with the homeowner.
Experienced Realtors know how frustrating working as a listing agent with an inexperienced, unskilled buyer’s agent is. Situations like these often create needless headaches, misunderstandings and problems for the seller. It’s like having two cooks in the kitchen — one who knows what they’re doing and one who doesn’t.
In some instances, a seller might prefer dealing with a single company because it allows greater control over the transaction, quicker problem-solving and fewer communication gaps. This creates a smoother, less stressful selling experience, even if that may mean a lower selling price.
4. Removing CCP gives homeowners a choice, especially when privacy matters
Repealing the CCP doesn’t mean sellers won’t have the option of placing their homes on the MLS. It just returns the choice to the homeowner. Some sellers may value their peace of mind and privacy more than squeezing every last dollar out of the property.
For instance, high-profile clients, those experiencing sensitive life changes, such as divorce or financial hardship, or individuals with security concerns might strongly prefer less traffic, fewer showings and more discretion. This might result in selling for slightly less, but for these sellers, the value of privacy, security and less drama outweighs the benefit of maximum exposure.
Remember how successful iBuyer programs became for a while? Although I am not a fan of iBuyer companies, their success clearly showed a market of homeowners who would choose convenience and privacy over getting top dollar.
5. Forcing CCP implies Realtors aren’t trustworthy
Supporters of CCP claim that without it, brokerages would routinely keep listings exclusive to serve their own interests. This argument implies that Realtors lack integrity and won’t act in the best interests of their sellers — so much so that a policy had to be created to force Realtors to share their listings with the entire association. That’s a deeply troubling message, suggesting that NAR believes most Realtors put themselves before their clients.
6. The market and legal system can regulate itself
Let’s assume that without the CCP, a handful of brokerages do coerce or mislead their clients into exclusive listings rather than listing on the MLS. If homeowners later believe they were misled or financially harmed, those brokerages will face serious consequences — possibly another class-action lawsuit.
My suggestion to further prevent confusion for the seller is to add a clear disclosure form explaining the pros and cons of an MLS Listing versus an office exclusive listing, signed by homeowners, to keep everything transparent and above board.
7. The CCP implies homeowners aren’t smart enough to decide for themselves
The argument in favor of CCP assumes homeowners aren’t educated about marketing, exposure and the benefits of the MLS — that they’re entirely unaware of the MLS system and its advantages. Really? It’s absurd to assume sellers are incapable of making informed decisions and will blindly follow whatever their agent tells them.
If you ask 100 homeowners whether they’d prefer exclusive listings, at least 95 will probably say, “Wait, wouldn’t the MLS get us more exposure and a better price?” Clearly, homeowners are more competent than CCP supporters give them credit for. They can make good decisions for themselves without being forced into anything.
8. Exclusive listings don’t mean excluding the perfect buyer
What happens if there is an ideal buyer, but the agent can’t show it because it’s listed exclusively with a company and not on the MLS? There’s an easy solution we’ve successfully used in real estate for decades — a targeted cooperation agreement. This agreement allows a buyer’s agent to show the property specifically to that one particular buyer without opening the floodgates to unwanted traffic and stress for the homeowner.
It’s an ideal compromise, ensuring qualified buyers get a fair shot while providing homeowners with the privacy and control they desire. This targeted approach has always worked exceptionally well in practice, benefiting everyone involved.
Restoring choice
Repealing the Clear Cooperation Policy isn’t about weakening competition or undermining MLS — it’s about restoring choice, trust and common sense to our industry. Homeowners deserve the freedom to decide what’s best for their situation, and Realtors deserve the trust to guide clients ethically without restrictive mandates. NAR should stop telling Realtors how to run their businesses and acting as a law firm.
More importantly, given everything we’ve already endured, the real estate industry can’t afford another costly class action lawsuit.
Let’s proactively eliminate this risk now and do what’s truly best for agents and homeowners alike. Mark my words, and bookmark this article — if we do not rescind this 6-year-old experiment, this will be the next major lawsuit our industry will be dealing with.
Darryl Davis is the CEO of Darryl Davis Seminars. Connect with him on Facebook or YouTube.
