The private listing service, Top Agent Network (TAN), sued the National Association of Realtors (NAR) and the San Francisco Association of Realtors (SFAR) in 2020, challenging the Clear Cooperation Policy, which requires an agent or broker to add their listing to the multiple listing service within one day of marketing it to the public.
This rule effectively locks out private listing services, according to TAN's CEO. The lawsuit alleges that NAR conspired with SFAR to force agents to list their properties on the MLS, which would increase the fees that NAR collects.
That case had been dismissed and reopened three times since its filing. Most recently, in December 2023, the U.S. District Judge agreed to reopen the case after an earlier dismissal. Then, in April, the parties appeared to be working toward a settlement, but that process stalled. The plaintiffs filed a motion to reconsider and reopen the case. That motion was granted in an order filed July 22 in the U.S. District Court's Northern District of California. The judge approved the plaintiffs' motion for reconsideration and scheduled a case management conference for Aug. 30. TAN is seeking an October 2025 trial date.
The court gave two reasons for reexamining the case. Two issues decided in a different case, PLS.com vs. the National Association of Realtors, were relevant to this case and compelled him to reconsider the TAN suit. Those issues were that the relevant market in the case is not the consumer real estate marketplace but real estate listing services.
The second issue is whether the pro-competitive benefits of the Clear Cooperation Policy outweigh the alleged anti-competitive effects. The court held that the complaint from TAN "adequately alleged" that the policy violates the Sherman Antitrust Act and that the company "has been injured by that injury to competition." Dave Gallagher July 24, 2024"Pocket listings lawsuit gets (another) new lease on life" www.realestatenews.com. (Jul. 24, 2025).
Commentary
This is not the first time the NAR's MLS program has been the subject of a lawsuit. Non-members have attempted to avail themselves of the MLS service for years.
It is a violation of both federal fair housing laws and, therefore, the NAR's Code of Ethics, to "steer" potential buyers or sellers in a certain direction or encourage them to buy a certain home or sell at a certain time or for a certain price.
The NAR's Handbook on Multiple Listing Policy contains Policy Statement 7.58, titled Advertising (Print and Electronic), Section 1: Internet Data Exchange (IDX) Policy.
Under the subheading of Additional Local Issues/Options, the following statement:
Where MLS participatory rights are available to non-member brokers or firms as a matter of law or local determination, the right to IDX display of listing information may be limited, as a matter of local option, to participants who are REALTORS®. (Amended 05/12)
Whether the NAR fully embraces its own policy and fully opens its MLS listings to discount real estate services, a real estate professional should always put the needs of the client first and show any listings that meet the needs of the client, regardless of the anticipated commission. To discriminate against potential listings, or direct clients away from listings with less commissions, or denigrate such listings in hopes of influencing a buyer could constitute "steering."
The California case above illustrates another facet of "steering" if, as the plaintiff argues, buyers are unable to see private listing services easily, thus steering them to MLS-affiliated brokers.
