NAR to court: ‘Compass is no bystander’ in CCP fight 

The National Association of Realtors this week fired back at Compass executives' request to quash its subpoenas in an antitrust lawsuit, arguing that the documents it seeks are necessary to cross-examine a witness that would speak against its Clear Cooperation Policy.

The Oct. 27 filing is part of a discovery fight between NAR and Compass in ThePLS.com v. NAR. In its case, ThePLS alleges that the CCP, which requires a listing broker to submit a listing to the MLS within one business day of publicly marketing it, violates antitrust laws. 

On Oct. 23, Compass CEO Robert Reffkin, Compass Chief Strategy Officer Ashton Alexander and Compass President of Integrated Services Cory Perkins petitioned the U.S. District Court for the Southern District of New York to quash subpoenas issued by NAR in the case. They argued that Compass is not a party to the suit and alleged that NAR is retaliating against them to discourage them from testifying against the CCP.

A mutual 'quest'?: In its Oct. 27 filing, NAR argued that "Compass is no bystander" in the fight and has "campaigned vigorously to challenge the CCP" from its inception. NAR further alleged that Reffkin and Alexander "coordinated with PLS co-founder Mauricio Umansky in their shared 'quest' against the CCP."

Compass "wants to help PLS because both PLS and Compass seek to invalidate policies like NAR's Clear Cooperation Policy (CCP) for their own benefit, at the expense of a transparent and competitive marketplace," the filing alleged. It also pointed to Compass' litigation — threatened and actual — against MLSs that enforce the CCP. 

Refusal to provide any new documents: According to NAR, ThePLS is the party that injected Compass witnesses into the case. NAR said it subsequently issued subpoenas to those witnesses, but Compass "steadfastly refused to discuss the scope of NAR's requests — announcing that it simply would not produce any documents." 

"Compass cannot sponsor a witness but hide her documents," the filing argued. "The Court should deny the motion to quash and order Compass to produce documents in time for NAR to use them in Alexander's deposition."

Compass can't 'have its cake and eat it, too': NAR said it needs documents to cross-examine Alexander fairly.

Compass and ThePLS "want Alexander to provide testimony critical of CCP — and thus helpful to PLS — while preventing meaningful cross-examination that might undermine that testimony," the filing alleged. "Compass cannot have its cake and eat it, too. It must produce Alexander's documents to ensure fair cross-examination." 

What NAR wants: NAR has asked the court to transfer the subpoena dispute to the U.S. District Court for the Central District of California, where ThePLS case was filed. That court will hear similar disputes over NAR subpoenas of Compass' California-based witnesses.

Alternatively, NAR has asked the court to deny the motion to quash, deny Compass' request for sanctions and compel Compass to produce a narrowed set of requests drawn from its Reffkin subpoena, covering 2017 to the present. 

Promoting 'a fair, transparent, and competitive' marketplace: An NAR spokesperson emphasized the organization's arguments in an emailed statement. "As outlined in our court filing, the petitioners cannot provide a witness to testify in support of PLS while simultaneously refusing to produce documents necessary for NAR to fairly cross-examine its witness," the spokesperson said.

"NAR will continue to defend against the underlying claims and demonstrate that our policies promote a fair, transparent, and competitive real estate marketplace that benefits brokers and consumers alike," the statement added.

Real Estate News has asked Compass for comment and will update this story if and when a response is received.