Bigger. Better. Bolder. Inman Connect is heading to San Diego. Join thousands of real estate pros, connect with the Inman Community and gain insights from hundreds of leading minds shaping the industry. If you’re ready to grow your business and invest in yourself, this is where you need to be. Go BIG in San Diego!
As the fate of the National Association of Realtors’ Clear Cooperation Policy approaches, the Department of Justice is clarifying its stance on the divisive NAR rule — and rebuking industry players who have attempted to interpret its take on the matter.
In a Supplemental Statement of Interest filed in the class-action commission lawsuit Nosalek v. MLS PIN on Monday, the DOJ in an easily overlooked footnote clarified its stance on CCP and suggested that figures in the industry who have attempted to use the agency’s supposed stance on the policy for their own arguments have not been entirely correct.
TAKE THE INMAN INTEL INDEX SURVEY FOR MARCH
“Of note, industry participants have made public statements about the Division’s purported position on clear cooperation policies that are misleading and out of context,” the footnote on page 7 states. “The Division has not taken a position that such policies standing alone (i.e., without mandated MLS publication of offers of compensation or exceptions benefitting primarily large brokerages) are anticompetitive.”
The most vocal and visible critic of CCP who has also publicly stated what he believes to be the DOJ’s stance on the matter is Compass CEO Robert Reffkin. At industry events and on social media, as well as in op-eds, Reffkin has — in hand with his own arguments for getting rid of the policy — claimed that the DOJ believes Clear Cooperation “restricts homeseller choices” and “prevents competition from listing systems,” as he told attendees at Inman on Tour Nashville last week.
Reffkin on Thursday clarified that he had been sharing a quote from District of Columbia Appeals Court Judge Florence Pan.
But in this latest statement, the DOJ appears to be pushing back against that characterization.
The footnote suggests that the DOJ, on the contrary, takes no issue with the policy on its own. But the parenthetical within the footnote indicates that it is when Clear Cooperation is used in tandem with non-NAR governed MLS’s (like MLS PIN) that still allow cooperative compensation on the MLS that the DOJ might view the policy less favorably.
The same interpretation seems to go for the office exclusives loophole within the policy that allows brokerages to not be required to publicly list a property on the MLS if it is an office exclusive.
Compass’ leadership team was traveling at the time of writing this story and, thus, unavailable to comment by press time. Attorneys for the DOJ also did not immediately respond to Inman’s request for clarification on their statements about CCP.
Although other major industry players have publicly expressed their distaste for Clear Cooperation, including The Agency CEO Mauricio Umansky and Howard Hanna CEO Howard “Hoby” Hanna IV, they have not so directly and repeatedly sought to publicly claim knowledge of the DOJ’s stance on the policy like Reffkin has done.
James Dwiggins, who is CEO of NextHome and a vocal advocate of the policy, told Inman that he saw this footnote by the DOJ as a “clear rebuke,” particularly since the agency decided to place this in a Supplemental Statement of Interest that generally has little to do with Clear Cooperation.
“To me, it is extremely clear that they wanted this out in the public that they do not agree with the positions that some are taking in the industry, and specifically, Robert Reffkin, because he’s the one who keeps saying that the DOJ is against CCP,” Dwiggins said. “To me, that is a very clear rebuke of what has been stated. They put it in a document that has nothing to do with CCP to get it out into the public forum.”
Dwiggins said the DOJ’s statement had already generated a lot of discussion among his industry colleagues, and he said that the consensus seemed to be that the agency does not agree with Reffkin’s assessment.
“And that would make logical sense because the policy in itself is designed to protect sellers and buyers from behaviors that could potentially harm them,” Dwiggins said. “It protects sellers from not being on the greatest marketplace in the world that helps them get the highest price, and it protects buyers from fair housing issues. That’s fundamentally what CCP is about. So I’m very, very happy that the DOJ put this statement out. It changes the narrative very quickly here.”
Reffkin’s comments about the DOJ’s stance do not appear to have come out of thin air, however. Last April, the U.S. Court of Appeals for the District of Columbia ruled that the DOJ could reopen its investigation into NAR that had started years before. Both parties had agreed to a proposed settlement in 2020, but the court last year allowed the DOJ to relaunch its investigation into the association’s practices.
On page 4 of that court opinion filed on April 5, 2024, judges including Judge Florence Pan wrote, “DOJ believes that the Clear Cooperation Policy restricts home-seller choices and precludes competition from new listing services.”
The sentence was written in conjunction with a review of the DOJ’s investigations into NAR in recent years, including into the Clear Cooperation Policy and the Participation Rule. Regarding the latter, the court also said in the same opinion, “According to the DOJ, the Participation Rule restrains price competition among buyer-brokers and causes them to steer customers to higher-commission listings.”
In January 2025, the Supreme Court declined NAR’s appeal request to pause the DOJ’s investigation, keeping the industry under DOJ scrutiny.
Leaders of NAR are preparing to decide the fate of Clear Cooperation over the next few weeks, sources have told Inman, so the DOJ’s CCP footnote comes at a crucial time for the policy. By his interpretation of the DOJ’s most recent statement on Monday, Dwiggins said that the path forward for NAR leadership should be clear.
“I think for [NAR], the concerns have always been about further antitrust issues with the Department of Justice. I think that should give them the confidence to know that they need to keep the policy in place, that the DOJ is signaling that they don’t have a problem with it.”
NAR declined to comment on the footnote to Inman and did not say whether or not the DOJ’s statement would impact the association’s decision on the future of Clear Cooperation.
Dwiggins also pointed out the DOJ’s aside about MLSs that still use cooperative compensation in tandem with Clear Cooperation and said he thought it indicated that they were not OK with the use of CCP in this situation.
“Like MLS PIN, for example, that are not NAR governed who are still doing Cooperative Compensation in the MLS, the DOJ is very clearly taking that out of it, that they may not be OK with CCP when they’re still doing that,” Dwiggins explained. “But for the ones that are governed by NAR and following CCP, it’s a very clear statement that they’re not taking a position that that is anti-competitive. That should give NAR some confidence to stay with the policy, protect consumers as they should, and this is my opinion, specifically — they should remove office exclusives completely from the policy so that it removes any chance of these behaviors that are basically harming homesellers.”
Email Lillian Dickerson
