Upstream denies Zillow suggestion it's building a national MLS

The legal battle between bitter rivals Zillow and Move Inc. rages on and is now entangling one of the real estate industry’s newest potentially game-changing initiatives: Upstream.

According to its backers, Upstream will be a non-consumer-facing data entry and collection platform that will function as a middleman between real estate firms and the recipients of their data, including MLSs and vendors.

But in a legal filing made public this week, Zillow suggested the broker-lead initiative would be much more: a national MLS with realtor.com as the consumer portal.

(Learn more about what Upstream is.)

A broker portal and national MLS

In a letter to Washington’s King County Superior Court, Zillow listed “Move’s plans for pursuing or teaming with Project Upstream to drive a broker portal” among Move’s alleged trade secrets.

Zillow also suggested Move had attempted to partner with Upstream “as part of a broader initiative to ultimately roll up all the MLSs into a single national MLS with realtor.com as the consumer portal.”

The idea of a national MLS has been bandied about for years, inspiring no small measure of controversy in an industry with some 800 MLSs.

Robert “Bob” Moline

But Robert “Bob” Moline, president of HomeServices of America and a member of UpstreamRE LLC’s board of managers, said he was surprised by Zillow’s assertions.

Upstream is not creating a national MLS and Upstream “is not pursuing anything with Move or ListHub,” he said in an email.

Moline is also on the board of managers for another new industry initiative, the Broker Public Portal, but declined to speak for BPP. The two initiatives have some of the same backers, but they are “two separate groups with different objectives,” Moline said.

When asked whether Move was involved with BPP, the project’s facilitator, WAV Group’s Victor Lund, declined to comment.

A Zillow spokeswoman also declined to comment, saying, “We have no comment beyond what’s stated in the court filings as this remains open and ongoing litigation.”

Move declined to comment for this story.

‘Our vision includes MLSs that keep to that core of cooperation and compensation’

Craig Cheatham

At last week’s Council of MLSs (CMLS) conference in Kansas City, Upstream secretary and board member Craig Cheatham was unequivocal: Upstream’s vision does not include being a national MLS.

“The way we’ve written our governing documents, we can’t be an MLS,” Cheatham said.

“[It] is not our mission to do a nationwide MLS. I don’t think I would get agreement among the founders that one MLS is the right thing to do. I don’t think Upstream is looking to get into the [rules] enforcement business,” he added.

When asked whether MLSs should be worried about Upstream, he said, “We’re in a world where everybody is worried about everything,” but added, “We fully intend for MLSs to be around. Our vision for the future includes MLSs that keep to that core of cooperation and compensation.”

That latter clarification is significant. Some brokers say MLSs should limit themselves to a “core” mission of providing their members with information about each others’ listings and offers of cooperation and compensation among brokers.

This was at the root of many grievances that big broker network The Realty Alliance (TRA) leveled at MLSs in October 2013, following CMLS’s 2013 conference. Cheatham, TRA’s president and CEO, delivered an ominous-sound warning to MLSs at the conference that turned out to be the industry’s first public inkling of Upstream’s advent.

Move loses bid for Upstream

Move may not be involved with Upstream, but the company wanted to be. In a July filing, the court noted that Move did not succeed in its bid to provide a platform (using ListHub) to Project Upstream and that former Move CEO Steve Berkowitz had laid that loss at Zillow’s feet.

Steve Berkowitz

Berkowitz “testified that Move’s failure to obtain the Project Upstream bid is actionable against the Defendants,” the court said.

This may be because Move alleges Zillow co-defendant, Errol Samuelson, steered his former employer, Move, away from acquiring a company whose technology could have bolstered Move’s bid: Retsly Software Inc.

Retsly streamlines access to multiple listing service data for real estate technology developers. Zillow announced it had acquired Retsly in July 2014, a few months after hiring Samuelson.

Errol Samuelson

Cheatham declined to comment on why Move’s bid was not chosen and on whether Retsly would have helped Move’s bid, saying “Upstream is not making public the content of its deliberations or negotiations.”

He acknowledged the bid, however, and noted that Zillow had not submitted one.

“ListHub did submit a proposal to be the supplier of at least a portion of Upstream’s functionality, but Upstream is not in negotiations currently with ListHub for that technology or those services, and I do not expect we will initiate such negotiations,” Cheatham said.

“We supplied Zillow with an RFP for Upstream, at their request, but Zillow informed us at the response deadline they had decided internally not to bid.”

In July, the court granted Zillow’s request to compel Move and its co-plaintiff the National Association of Realtors (NAR) to produce documents related to Upstream, NAR subsidiary Realtors Property Resource (RPR), and RPR’s AMP project.

Zillow declined to comment on whether it had conducted that discovery.

Trade secrets

In the filing, Zillow named a number of other items listed among Move’s trade secret claims, some past projects and some hinting at future rollouts:

• Move’s launch of Find a Realtor 2.0 last May
• Move’s integration of Five Street, Tiger Lead, Top Producer and ListHub
• Move’s launch of a seller portal tool
• Move’s Collaborative Search software
• Product plans for Tiger Lead and agent profiles
• Move’s merger discussions with NewsCorp.
• Move’s merger discussions with Trulia
• Move’s ListHub strategies including strategies for obtaining direct listings, preventing Zillow from obtaining listings and forcing Zillow to remain dependent on ListHub (thus implicating Zillow’s own direct feed efforts)
• Zillow’s launch of the Zillow Data Dashboard
• The non-renewal of the Zillow/ListHub syndication agreement
• Move’s SaaS (software-as-a-service) strategies
• Move’s plans for using ListHub as a data entry point
• Move’s plans for pursuing its Real Estate Platform initiatives (including LeadHub and AppHub)
• Zillow’s acquisition of Retsly
• Move’s agreements with NRT, Century 21, Douglas Elliman, Brown Harris and others
• The advertising restrictions placed on Move under the NAR operating agreement
• NAR’s domain name strategies

Email Andrea V. Brambila.