Private listing networks continue to attract increasing attention from lawmakers, regulators and the courts. What was once primarily an industry debate has become the subject of lawsuits, requests for federal investigations and now congressional interest. While none of these developments establish that anyone has violated antitrust laws, they do suggest that policymakers are taking a much closer look at where the industry is headed.
The latest development came this week when the House Judiciary Committee’s Subcommittee on the Administrative State, Regulatory Reform and Antitrust requested briefings from Compass CEO Robert Reffkin and MRED CEO Rebecca Jensen regarding their companies’ private listing partnership announced earlier this year. The committee wants to better understand how the arrangement works and whether it could affect competition, consumer choice and access to listing information.
This request did not happen in a vacuum. Last December, Senators Elizabeth Warren and Ron Wyden urged the Department of Justice and the Federal Trade Commission to closely examine Compass’ proposed acquisition of Anywhere Real Estate, citing concerns about competition and transparency. Earlier this month, the Consumer Federation of America and several other organizations asked the DOJ and FTC to investigate Compass’ agreements with MRED, Bright MLS, Realtracs and The MLS/CLAW. At the same time, litigation between Zillow, Compass and MRED continues to work its way through federal court. Viewed individually, each of these actions may not seem particularly significant. Taken together, however, they paint a picture of increasing scrutiny from multiple directions.
The central issue is not whether private listings should exist. There are certainly situations where a seller has legitimate reasons for wanting to limit exposure, whether for privacy, security or other personal considerations. Sellers should have options, and real estate professionals should be able to recommend marketing strategies that best fit their clients’ objectives. The larger question being raised by Congress and others is whether large, interconnected private listing networks could eventually reduce competition by limiting who has access to listing information or by creating separate marketplaces that operate outside the traditional MLS system.
Critics argue that widespread use of private listing networks could reduce transparency, make it more difficult for buyers to learn about available properties and increase opportunities for transactions to remain within a single brokerage. Supporters respond that sellers own their listings, should control how they are marketed and should not be forced into a one size fits all approach. Those are legitimate policy questions, and they deserve thoughtful discussion rather than slogans from either side.
As Chairman of MARIS, the regional MLS that serves the St Louis metro area and beyond, I believe an MLS has an important responsibility to strike the right balance. An MLS should facilitate cooperation among brokers while preserving meaningful choices for sellers and maintaining a marketplace that promotes fair competition. Those objectives are not mutually exclusive, but achieving the right balance becomes more challenging as technology, business models and consumer expectations continue to evolve.
Regardless of where this debate ultimately leads, one thing is becoming increasingly clear. Private listing networks are no longer simply an industry issue. They have become an antitrust issue receiving attention from Congress, federal regulators, consumer advocacy organizations and the courts. The outcome of these various reviews will likely influence the future of listing distribution and cooperation throughout the real estate industry for years to come.
