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From the get-go when NAR was requesting comments on the policy I told them it was an anti-trust violation and restricted the trade against smaller brokerages.
The Clear Cooperation Policy is harmful to smaller and independent brokerages and it is harmful to consumers who need extra privacy, and it was a policy that was not needed then and is still not needed.
The Clear Cooperation Policy has a carve-out that allows for office exclusives to be shared with all staff under the same Broker, regardless of what physical office they are in. This allows mega companies like KW, Anywhere, Re/Max, Century 21, BHHS, etc. to form up under the same Broker across wide geographic regions and keep all their listings in-house and sell them in-house. There is no way for companies like mine or other smaller local companies to compete against that. Just think about how it is now with the mega-chains where they have 300+ agents in a single office. Now multiply what that would do to the market across all of Southern California or all of California. It's a huge potential for problems, especially now that buyers have to pay for their own agency, smart Brokers could come up with a marketing tactic to have sellers pay a smaller overall percentage but pay both sides. If you don't have to work with outside agents and you can have your own in-house escrow company and maybe even a title company, why wouldn't you?
This is the model that Compass offers through its "Private Exclusive" program, which has been in existence since 2019. This is why the North West MLS in Washington State does not allow "Office Exclusive" listings in their MLS and why Compass is trying to sue them over it.
On the consumer side, sellers that are at a higher risk such as bank execs, celebrities, domestic violence victims and other "HVTs" are at a disadvantage because they no longer have an effective option for agents to network their listings while keeping them off of the MLS.
Real estate worked VERY well for over decades without the need for a Clear Cooperation Policy. It was only in the most recent super hot market when some agents were able to market a home as coming soon and find a buyer for it themselves prior to it being open to other agents that it became a problem. A group of buyers agents complained loud enough and NAR, being the spineless and feckless organization that it is, bowed to them and created the Clear Cooperation Policy. It's what they do. Just like anytime the DOJ comes around they bend over and let the DOJ wipe the floor with them. What NAR should have said was "Hey, this is a problem created by a very temporary super hot market which is already cooling off. The problem will fix itself." The vast majority of agents used coming soon to spark interest and that's it.
NAR's Clear Cooperation Policy is bad for the industry and it is not needed. It tries to solve a problem that resolved itself. It is further proof that free markets correct themselves and do not need interference from governmental or trade association legislation/rules.
UPDATE: On 3/25/25 NAR announced a new addition to the Clear Cooperation Policy. More information on it here.
