Turns Out, “Seller Choice” May Be About Broker Choice
Whose choice are we really fighting for?
By Summer Goralik
(I have been writing this article in my head for four days now, and it goes something like this.)
In my house, if you sneeze once, you hear “Bless you!” from somewhere nearby, sometimes from a few family members in unison. It’s anchored in sweetness and genuine care.
Sneeze twice, though, and like clockwork, the synchronized chorus thins out. One person might be left, willing to offer another blessing, but with noticeably less enthusiasm.
Now, if you sneeze three times in my house? Well, let me tell you, the mood changes entirely.
Forget the blessing. That’s out the window. Instead, you are now actually guilty of having crossed some unspoken sound barrier. Believe it or not, someone might even respond with “Come on now!” in the most offended tone.
In that moment, their willingness to be gracious gives way to an involuntary and less forgiving reaction, as though my trifecta of sneezes constitutes an audacious assault on our shared space.
That unadulterated response? The third-sneeze-in-a-row kind? That was me just two weeks ago when I learned of $1,000 digital marketing packages reportedly being proffered by Compass to agents who removed listings from Zillow-owned StreetEasy. Real Estate News reported that a September 13 email offered participating New York City agents a 30-day package across Google, Facebook and Instagram, encouraging removal “where your sellers and you are comfortable.”
Amid the relentless industry debate on private listings, it was just too much to bear. So I wrote about it. My version of Come on now!
Listen, I want to move on and stop writing about this damn divide in the industry. I long to focus on my work and patiently wait for others to take action, whatever that looks like. By others, I mean those with badges or the authority to issue legal orders.
But apparently, there is no end in sight, as the latest development takes hold of industry news and LinkedIn posts everywhere.
To set this up right, and in the spirit of my personal admissions thus far, you should know that, on occasion, I have sneezed four times in a row. It’s a rare occurrence, and it usually takes all witnesses by surprise. When it happens, the crowd kind of stops in its tracks. No one is sweetly blessing me, no, but also, no one is outright annoyed. Instead, they just stare at me in quiet disbelief.
Dear reader, having learned a lot more than you bargained for about my personal habits today, you should know that this quiet disbelief is precisely how I felt after reading about Compass threatening to sue MLSs. I understood what I was reading. I just couldn’t quite believe it.
From my vantage point, the firm appears to be seeking to force alignment between MLS rules and its preferred marketing strategy, all in the name of “seller choice.”
And its legal threat against the California Regional Multiple Listing Service over public marketing of office-exclusive listings is where this article really begins.
(I still dislike private listings for all the reasons I have written about before. But this time around, I’m taking a different car for a spin.)
What choice is actually missing?
To start, let’s quickly describe both sides of the landscape, at least how I understand them.
In the simplest terms, Compass wants CRMLS to stop fining or otherwise punishing real estate professionals for publicly marketing what its demand letter calls “office exclusive” listings. The dispute arises because CRMLS’s rules require covered exclusive listings to be submitted for cooperation within one business day of public marketing.
According to Inman’s October 1 report on the CMLS conference, Robert Reffkin described his objective as the freedom to put a listing on Compass’s website.
Honestly, if I didn’t know anything about the inner workings of real estate and the MLS, I would think this request seems completely reasonable. And I imagine many people would, and do.
I am not an outsider, though. I am an insider, living in a weird crevice of the real estate field called compliance, which just happens to be ignored by some and prioritized by others.
So when I tilt the lens a bit to examine the entire context, I see this: If this were simply about hosting a listing on a broker’s website, Reffkin would have my support in a second. A prohibition on that alone would seem absurd.
But, as with many things, it’s not that simple.
Okay, enough chit-chat, Summer. Let’s get into it.
Seller choice, seller choice, seller choice. When you get to the underbelly of the private-listing debate, that’s the usual refrain. I have heard it so many times that now I only hear Inigo Montoya from The Princess Bride, with his beautiful Spanish accent, saying:
“You keep using that word. I do not think it means what you think it means.”
In the classic film, Montoya is questioning Vizzini’s use of “inconceivable,” a word he keeps memorably repeating. Here, I am questioning “choice.” Not its definition so much as whose choice we are actually talking about.
Because before we accept another demand framed as seller choice, I would like to know whose choice, and whose interests, we are being asked to protect.
Compass’s September 8 legal demand asks CRMLS to stop fining or punishing professionals for publicly marketing office-exclusive listings. It simultaneously offers a release of the claims described in the letter if CRMLS agrees by October 6; otherwise, it threatens federal antitrust litigation. Compass argues that these demands support consumer choice and competition.
A quick and worthy P.S.: Compass also says it will spend millions of dollars suing CRMLS and other MLSs to accomplish those goals.
What about the other side of the coin?
Ed Zorn, CRMLS’s vice president and general counsel, answered the demand in a written response that now lives on CRMLS’s website, where those of us in the peanut gallery can read it and make sense of it for ourselves. (Thank you.)
Two points stand out to me.
First, CRMLS already permits public off-MLS marketing under a non-exclusive agreement.
Wait, what?
Yes. I have known about this option for some time, but I still wonder why it isn’t more prominent in a debate supposedly centered on seller choice.
There she is, the non-exclusive option, right there in CRMLS’s published guidance: full public marketing of an off-MLS listing is permitted if a non-exclusive listing agreement is signed. By contrast, Rule 7.9 applies its one-business-day public-marketing submission requirement to specified residential properties under exclusive right-to-sell or seller-reserved agreements.
These are CRMLS’s rules, of course. Other MLSs may differ.
If Compass wants to publicly market a listing without submitting it for cooperation, specifically by advertising it front and center on its website, it can do just that under CRMLS’s rules. As long as the underlying listing agreement is non-exclusive.
That is another listing option for sellers. Another choice, if you will. I often wonder how frequently brokers actually present that option to sellers in the name of seller choice.
There’s that phrase again. Those words that hang vibrantly above the private-listing debate like a giant billboard in the sky.
In all seriousness, a genuine non-exclusive listing option leaves sellers free to engage other brokers or sell independently, as CRMLS’s explanation confirms. Compass can publicly advertise those listings on its website while remaining a participant in the cooperative.
Sounds like a possible solution, right? But consider what the brokerage would have to give up: exclusivity over those particular listings.
And therein lies the rub.
I have to tell you, that is the distinction I cannot get past. We are talking about sellers, right? Their choices, which we hope are informed. Well, public off-MLS marketing is already available through a non-exclusive agreement. It’s sitting right there on the table, for the taking.
So what additional benefit to the seller requires preserving the broker’s exclusivity? I would like to hear that explained with the same enthusiasm as “seller choice.”
To be fair, a non-exclusive agreement is a different bargain, and a seller may prefer exclusive representation. But that makes the explanation more important: What does exclusivity offer this seller, and why is it necessary for the proposed marketing strategy?
Compass’s demand argues that sellers should not have to choose between their preferred listing type and their preferred marketing strategy. As I read it, that means preserving exclusive representation while allowing public off-MLS marketing.
Hold that up to the light for a minute.
What makes the cooperative work?
In other news… (Please read that in your best television newscaster voice.)
The second point in Zorn’s response made me stop and consider something I admittedly had never given much thought to: his argument about free-riding agents. He explains CRMLS’s submission rule as a way to prevent participants from benefiting from the cooperative’s shared listing information while withholding their own publicly marketed exclusive listings from that same cooperative.
Here is the more interesting part: Before an agent even secures the listing, the cooperative may already be doing work. The MLS wheels, and its shared benefits, are already in motion. It goes like this.
The records contributed by competing brokers form the very fabric of the MLS. As Zorn explains, they help an agent prepare a market analysis and advise the seller about price, often critical steps in procuring a listing. These photos, property details and sales information, the fruits of the MLS, help both the agent and seller understand the market.
If participants use that shared information to compete for business, then withhold their own publicly marketed exclusive listings, what happens to the exchange that makes the cooperative valuable?
In Zorn’s account, Rule 7.9 protects that exchange.
In my opinion, this is a compelling explanation of what the rule is intended to protect. It goes beyond where a listing appears on the internet. It is about fairness and give-and-take: what you contribute to the cooperative makes possible what you get from the cooperative.
Another way to put it: If the cooperative helped you get the business in the first place, why turn your back on it when it comes time to sell the property?
Come on now.
A highly respected industry leader texted me last week with an article about Compass threatening to sue MLSs, asking for my quick take. With a spoonful of Greek yogurt in my mouth, my dog to leash up and a work call about to begin (my usual morning juggling act), I instinctively typed:
“Compass wants to have its cake and eat it too.”
Yes, hardly an elaborate analysis between bites of yogurt, but after reading Zorn’s explanation of free riding, I stand by the comparison.
The non-exclusive option would let the seller authorize public off-MLS marketing. What Compass is demanding, though, is the ability to do that while preserving exclusivity. In my mind, that insistence brings the broker’s preferred arrangement into focus.
Which makes me wonder: Maybe what we are really talking about here is broker choice.
The MLS is not the law
Speaking of choice, Zorn’s response identifies another option for Compass agents: subscribing to a different MLS that shares data with CRMLS. Compass disputes whether leaving CRMLS is a meaningful alternative. I am not resolving that disagreement here, but it raises a broader question about participation in the cooperative and the responsibilities that come with it.
At the CMLS conference, Reffkin argued that marketing decisions should be directed by the seller and the law, rather than the MLS. As Inman reported, he emphasized the distinction between MLS rules and law.
I have often said it myself to clients when the topic comes up: The MLS is not the law. Working in a world of statutes and regulations enforced by the DRE, I understand that distinction.
But direct participation in a cooperative comes with rules and responsibilities.
That does not mean every rule is beyond challenge. But it absolutely does mean that a proposal to change those rules should account for what makes the cooperative valuable and how that value will be preserved.
I am not deciding the antitrust merits of either side’s position. My focus here is the
explanation given to the seller and the interests behind the recommended arrangement.
Whose interests come first?
What benefits the broker and what benefits the seller are not always the same. For argument’s sake, preserving exclusivity may serve both. But if this fight over publicly marketed exclusive listings is being waged in the seller’s name, I want the seller’s benefit explained. One more time, for me.
Because that question? It takes on added significance when I consider how Reffkin has described his company’s clients.
I first heard Reffkin describe agents as his company’s clients in person at ARELLO’s 2025 Mid-Year Meeting. To be honest, I had never heard a brokerage leader put it quite that way before, and given my work in real estate compliance, it caught my attention. I later came across a 2021 Inman article in which he said: “Our clients aren’t the buyers and sellers. Our clients are the agents.” In that article, he was discussing investments in services and tools to help agents grow their businesses and serve their own clients.
I do not read that statement as a denial of the duties owed to buyers and sellers. But it still leaves this ol’ compliance professional with a burning question: How does that approach handle a situation where the agent’s preferred arrangement and the seller’s interests diverge?
Of course, I understand that agents can be customers of a brokerage’s services and tools. That business relationship can coexist with the brokerage’s duties to the buyers and sellers it represents. Supporting agents can definitely help them serve consumers better.
But when I raise my right hand on the witness stand and am asked about standard of care and fiduciary duty, I am testifying about the seller or buyer being represented and what duties the broker owed to them.
California’s agency disclosure statute describes fiduciary duties of utmost care, integrity, honesty and loyalty to the represented seller or buyer. Calling the agent a client does not change those obligations. And that is where I start to get uneasy.
Meaning…
How do you ensure the seller’s interests com
e first when the private-listing strategy may also generate more leads, greater inventory control or opportunities for the brokerage to earn compensation on both sides of a transaction?
This is why what the consumer is told, and how the information is presented, matters.
Was the non-exclusive option explained? Were the possible consequences of limiting exposure discussed? Were any brokerage interests or incentives that influenced the recommendation made clear?
I have not reviewed the disclosures given to individual Compass sellers, but these are among the first questions I would ask when evaluating any brokerage’s recommendation of an off-MLS strategy.
And perhaps the seller’s response to the recommended strategy amounts to “As you wish.” Yes, another Princess Bride nugget. Not because sellers cannot think for themselves, no, but because they place trust in the professionals they hire to guide the sale of one of their largest assets. That trust makes the explanation more important, not less.
A threat to sue the MLS does not answer those questions. It does, however, make the brokerage’s preferred arrangement considerably clearer. And when public off-MLS marketing is already available through a non-exclusive agreement, I want to know why retaining exclusivity warrants this fight in the seller’s name.
The seller can say yes. I merely want to know what the seller was told before saying it, and whether that “yes” was informed.
Closing up shop, at least for today
Remember the fourth sneeze in a row? The one that leaves everyone stunned? That is where I am living.
The seller has a route to public off-MLS marketing. It’s right there. It’s been there. The fight is over retaining the broker’s exclusivity along with it, while continuing to enjoy the splendor the MLS offers its subscribers.
So go ahead, call it “seller choice” again. I will keep hearing Inigo Montoya.
But it’s not the meaning of “seller choice” I’m questioning. It’s whose choice we are defending. And from where I am sitting, this is starting to look a whole lot more like broker choice.
Writer’s note: The opinions and recommendations expressed in this article are based on my experience as a real estate compliance consultant and former investigator for the California Department of Real Estate. They are provided for informational purposes only and should not be construed as legal advice. Readers should consult with their brokerage and/or qualified legal counsel in their jurisdiction for guidance on specific situations.
About Summer
Summer Goralik is a Real Estate Compliance Consultant and licensed Real Estate Broker (#02022805). Summer offers real estate brokers a variety of consulting services including assistance with California Department of Real Estate investigations and audit preparation, mock audits, brokerage compliance guidance, advertising review, and training. She helps licensees evaluate their regulatory compliance and correct any non-compliant activities. Summer has an extensive background in real estate which includes private sector, regulatory and law enforcement experience. Prior to opening her consulting business in 2016, she worked for the Orange County District Attorney's Office as a Civilian Economic Crimes Investigator in their Real Estate Fraud Unit. Before that, Summer was employed as a Special Investigator for the DRE for six years. Among many achievements, she wrote several articles for the DRE, which still live on the Department's website today. Prior to her career in government and law enforcement, Summer also worked in the escrow industry for nearly five years. For more information about Summer's background and services, please visit her website.
