In the flurry of arguments over private listing networks, national MLS expansion and the cutting off of listing feeds to certain portals, there has been a lot of uncertainty surrounding some of the terms being tossed around—specifically, that of “objective criteria.”
When Zillow filed its lawsuit against Compass and MRED for allegedly engaging in an “illegal conspiracy” to hoard listings after inking their national MLS deal, the portal claimed that MRED updated its “objective criteria” rules for IDX and VOW (listing feeds) to provide a “pretextual basis” for “retaliating” against Zillow and has urged all 43,000 of its members to not provide Zillow with a direct listing feed.
Subsequently, Zillow lost access to about 5,000 listings from MRED, however these were restored following an order from Judge John Tharp after the portal filed a temporary restraining order to prevent the cut off.
Now, Realtracs is also looking to suspend Zillow’s listing feeds via a change in the MLS’s IDX display rules implemented on May 13, similar to the change that Zillow alleges MRED made. Other MLSs, including the largest in the country (Bright MLS on the Atlantic coast) have made similar tweaks. According to court documents in an ongoing lawsuit filed by Zillow, Compass has asked multiple other MLSs to “enforce” this policy.
In arguing about changes and cutting off feeds, the question stands: What exactly is “objective criteria,” and what role does it play in listing feed policies?
The National Association of Realtors® (NAR) released a policy statement breaking down its policies on “objective criteria” in IDX and VOW listing feeds.
On a definition of “objective criteria,” the statement unfortunately stated there is no “express definition,” but there are a multitude of examples: geography or location, list price range, property type, type of listing agreement (exclusive right to sell or exclusive agency), listing status, property attributes (number of bedrooms, baths, size) or other “neutral considerations.”
NAR also noted that “objective criteria” should: be “applied equally to all participants’ listings,” be “based on measurable or verifiable facts” and should “not explicitly and/or directly target any particular brokerage and/or agent by name.”
The organization then dove into Policy Statement 8.5: Non-filtering of Listings, which it notes was adopted back in 2021 “following discussions between NAR and the DOJ regarding concerns the DOJ had about MLS policies,” and were also partially born out of the Sitzer settlement agreement.
Under this policy, “MLS participants should not explicitly and/or directly filter out listings based on existence or level of compensation offered to the cooperating broker or the name of the brokerage and/or agent.”
Also notable, NAR stated that the provisions work “in conjunction with each other,” meaning that selecting displayed/distributed listings based on “objective criteria” does not break the non-filtering requirements.
Specifically, the organization stated that Policy 8.5 “does not prohibit ranking or sorting” of MLS listings, as long as it does not involve “the removal or the blocking of MLS listings which prevent the communication of those listings to a client or customer.”
However, looking at the larger picture, really only NAR-affiliated MLSs have to adhere directly to the organization’s MLS policies. Many MLSs that aren’t NAR affiliated still follow the organization’s policies as best practices, but can still interpret them in their own way.
One such MLS is MRED, which is not an NAR MLS. A source at MRED previously told RISMedia that while the MLS had been in contact with NAR regarding the policy, it was utilizing its own interpretation of the rule and “objective criteria.” That interpretation disallows any filtering that has anything to do with brokerage policy or actions, the source said, while “objective criteria” is about property characteristics.
Another question now remains: For the other MLSs inking their own national deals, will the changes they make surrounding “objective criteria” stand outside of NAR’s interpretations of its policy, and therefore continue to cause arguments and be accused of “weaponization,” or will it all fall in line?
