The National Association of Realtors (NAR) is on the verge of making a pivotal decision about its controversial Clear Cooperation Policy (CCP)—a rule requiring listings to be submitted to a multiple listing service (MLS) within one business day of public marketing. Now, attorney Michael Ketchmark, lead counsel in the landmark Sitzer lawsuit, has issued a stark warning: if NAR brokers vote to maintain the rule, he may take legal action against them.
Ketchmark, in an interview with Inman News, made his stance clear: “It’s my expectation that after this meeting, when this comes to a NAR vote overall, that they’ll do the right thing and remove that policy and let the free market continue to work.” He added that if the rule remains, his firm will scrutinize the motivations of those involved and determine whether anti-competitive behavior is at play. “We’ll take the depositions of the people involved and figure out exactly why they did that and what was the motivation behind it, and then make a decision at that point on how to proceed,” Ketchmark told Inman.
Legal Pressure Mounts Against NAR’s Listing Rules
The Clear Cooperation Policy, introduced in 2020, was originally designed to increase listing transparency and prevent pocket listings, which some argue allow brokers to double-end deals at the expense of consumer choice. However, opponents—including brokers, agents, and consumer advocates—argue that the rule violates antitrust principles by forcing listings into MLSs, thereby restricting homeowner control over marketing strategies.
NAR’s recent $418 million settlement in the Sitzer and related lawsuits has already forced major industry changes, including the decoupling of buyer agent compensation from listing agreements. Now, Clear Cooperation is in the crosshairs as another rule that may not withstand legal scrutiny.
Ketchmark emphasized that his issue is not with NAR itself, which he acknowledged has upheld its obligations under the settlement. Instead, his focus is on individual brokers who would vote to uphold the rule. “I don’t want anybody to suggest or think that I’m threatening the National Association of Realtors,” Ketchmark said, “but what I am saying is that whoever is voting to continue and enforce this rule, if we believe that it is done with anti-competitive goals in mind, that we will take their depositions and will hold anyone who is involved in that responsible.”
A Better Alternative: ‘MLS Exclusive’ Listings
As the debate over Clear Cooperation continues, one practical alternative gaining traction is an “MLS Exclusive” listing category. This approach would require all listings to be entered into the MLS, ensuring maximum exposure to real estate professionals while addressing seller privacy and security concerns.
Unlike traditional “office exclusive” listings—where properties are only shared within a single brokerage—MLS Exclusive listings would still be accessible to every licensed real estate professional in the MLS. For example, in the St. Louis area, MARIS (Mid-America Regional Information Systems) serves over 16,000 real estate professionals, all of whom would have access to MLS Exclusive listings.
This means that a seller’s property could still reach a vast network of professionals actively working with buyers, without being publicly displayed on thousands of websites like Zillow, Realtor.com, or IDX feeds on brokerage sites. For sellers who value privacy—such as high-profile individuals, those facing personal security concerns, or those in sensitive situations like divorce or estate sales—this provides an ideal balance between market exposure and confidentiality.
This solution eliminates the anti-competitive concerns of private “pocket listings” while preserving the seller’s right to control how their home is marketed. It also ensures that real estate professionals remain central to the transaction, offering expert guidance to both buyers and sellers without unnecessary public exposure.
The Future of Clear Cooperation
With NAR expected to vote on the policy by the end of the month, the fate of Clear Cooperation—and potentially more lawsuits—hangs in the balance. If Ketchmark follows through with legal action, brokers who support keeping the policy may find themselves on the defensive in court. Meanwhile, the industry must consider whether MLS Exclusive listingsoffer a more viable solution that protects both consumer choice and market integrity.
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