Actually Clearing the Air on Clear Cooperation Policy, Part 2: Balancing Freedom and Order

In Part 1, I focused on how any conversation about Clear Cooperation Policy needs to acknowledge and deeply understand the role of the Association, particularly NAR, in promulgating that policy, why they did so, and why they keep fighting for it.

We know that the MLS and its survival is an existential question for the Association, which explains why they fight for it so hard.

We know that the DOJ and the courts think that NAR and the Associations crossed the line into anticompetitive activities in violation of the antitrust laws by shutting down competition to the incumbent MLS systems.

We know further that brokerages cannot simply ignore possible future liability from CCP, because it isn’t about the issues and topics the rest of us want to talk about: open vs. closed, forced cooperation, etc. etc. It’s not about inside-baseball issues, but about shutting down competition to the existing MLS system.

At the same time, we cannot ignore the fact that whatever the motivation behind CCP, it does have real benefits of preventing the fracture of residential real estate into individual silos. An open system is superior to a closed system, especially for housing. Adam Smith’s invisible hand was at work here.

Understanding those realities, I laid out what I considered to be the three big issues with CCP:

1. Do we want open or closed? This is the issue most people will want to debate.
2. What should be the role of the REALTOR Association in the MLS?
3. How can brokerages, particularly the large ones who have already been thrown under the bus once, avoid liability?

In this part, I’d like to wrestle with each of these questions which are, as usual, all inter-related in important ways. I’m actually going to go in reverse order, because that is actually the easiest and simplest to handle.

Let’s do this.