Change the game

We don’t often represent MLS vendors. There are exceptions. The primary basis for an exception is when the MLS vendor’s interest very closely aligns with MLSs’. This is one of those times.

We are representing FBS in negotiations it’s initiated with Zillow Group

I worry (maybe needlessly) about the appearance of such vendor engagements and how our MLS clients would perceive them. How do we reconcile this? First, I talked with a few MLS clients – their answer: go for it. Also, FBS agreed to waive any conflicts of interest and to let us use any information we gain through the process to the benefit of our MLS/Association clients. FBS also agreed that we can publicly discuss our arrangement (see, e.g., this blog post). Finally, our representation is limited in scope and, as with any attorney-client engagement, each of us can part ways at will (subject to some attorney professional responsibility rules that are largely inapplicable here).

It’s a mess out there

As we’ve mentioned, we don’t think MLSs should create a ceiling for terms they may get from portals (Realtor.com, included), but we also think there is a place for group efforts (being mindful of potential antitrust risks).

Along with FBS, we have struggled to see how we can help. Zillow Group seems to prefer to negotiate one-off agreements with MLSs, we refuse to create an agreement that could act as a ceiling, and frankly, it’s a bit of a mess out there.

MLSs and brokers are working on timelines not created with input by the vast majority of entities impacted by this kerfuffle, the MLSs and brokers. There’s now a potential March 12 deadline for MLSs to keep listings currently provided via ListHub flowing to Trulia. There’s an April 7 deadline for MLSs to keep listings currently provided via ListHub flowing to Zillow. There are also other timelines being thrown out by various folks. It’s like a used car salesman trying to hit quota at the end of the month. What a tired sales tactic.

But maybe this is an opportunity.

Let’s take a step back; it’s not a binary choice

It’s easy to get locked into binary choices. Does the MLS agree to send data to Zillow or not? Will the MLS set up an agreement before the deadline or wait? Is it in the interest of an MLS’s brokers customers or not? Heck, I do it when I counsel clients working through these questions. I love to ask about the client’s BATNA, because without understanding it the client might not have its most fruitful negotiation.

Those are all important questions. But some in the industry have had blinders on.

These timelines are artificial. Interested parties can push them.

Enter the idea of the Stopgap Agreement

The goal of Stopgap Agreement is to give MLSs a reasonable amount of time to make reasoned decisions on their timeline; not Zillow Group’s or Move’s timeline. The agreement would be between the MLS and Zillow Group to keep data flowing in an interim period. Each MLS in consultation with their attorney can decide whether it makes sense for them. It’s still an individual choice.

The Agreement intentionally omits many terms MLSs and Zillow Group will need to negotiate for a complete agreement. (I got the Stopgap Agreement onto one page! Lawyer achievement unlocked!) To balance the omission of potentially critical terms, the Stopgap Agreement gives the MLS the ability to terminate the Agreement on 5 days notice and Zillow Group the ability to terminate the Agreement on 90 days notice (so MLSs would have time to let its brokers know and give them an opportunity to find alternative arrangements). The term of the Agreement is 6 months, providing a hard stop.

The data still flows, and there is incentive to create a new agreement (to have complete terms), if an MLS desires to do so after thinking it over properly, but the timeline is shifted.

FBS sent the agreement to Zillow Group. The ball is in Zillow’s court.

Don’t hate the tech company, hate the game. Don’t like the game? Don’t play it or change the rules.

Thanks for reading!
-Mitch