A
recent filing in a long-running commissions lawsuit has shed new light on the Department of Justice's stance on Clear Cooperation. In a footnote buried on page 7 of a March 17 supplemental statement, the DOJ clarified that it "has not taken a position" on whether CCP is anticompetitive - with some caveats.

    Industry players have been making claims about the agency's views on the policy, but the DOJ calls these statements "misleading and out of context." The footnote specifically targets those who have made public declarations about the Division's purported stance on clear cooperation policies. The DOJ emphasizes that it has not taken a position on CCP standing alone, without mandated MLS publication of offers of compensation or exceptions benefiting primarily large brokerages.

    The mention of exceptions benefitting primarily large brokerages leaves the door open for further investigation. Private listing networks, which rely on scale to operate, could be considered under this umbrella. While the DOJ doesn't explicitly name names, industry players like Compass CEO Robert Reffkin and The Agency founder Mauricio Umansky have been vocal in their opposition to CCP.

    Industry lawyer Brian Schneider interprets the language as a signal that the Clear Cooperation rule itself "does not seem to be anti-competitive." However, he warns brokerages with significant market presence to be cautious when only making listings available to select brokers. The Justice Department may view this as worthy of investigation.

    Compass has been reaching out to MLSs this week, reportedly warning them about potential litigation from enforcing Clear Cooperation and urging the maintenance of Office Exclusive designations.