The OnTheMarket Action Group has put a number of questions to the portal’s owners, Agents’ Mutual, using the trade press to do so.
It follows judgement earlier this month in the High Court in the ongoing case between Agents’ Mutual and Connells Group brand Gascoigne Halman.
The judgement, by Mr Justice Roth, sets out the background of Agents’ Mutual wanting to break into what it considered to be a duopolostic market and explains the one other portal rule.
It also clarifies that Gascoigne Halman – then an independent prior to its acquisition by Connells – became a Gold member with the ‘one other portal’ restriction lasting five years.
Gascoigne Halman’s contention now is that the ‘one other portal’ rule breaks competition law.
It also claims – and Mr Justice Roth says “this is a serious allegation” – that Agents’ Mutual, “together with at least some of its six founder members, was engaged in a wider concerted practice collectively to boycott Zoopla and PrimeLocation. It is alleged that this concerted practice was deliberately concealed from Gascoigne Halman”.
The specific judgement relates to Gascoigne Halman requiring Agents’ Mutual to put up further money as security (Agents’ Mutual having already paid £500,000 into court).
As already reported by EYE, Agents’ Mutual was ordered to pay more security. This is to be paid in three stages: £280,000 by today; £250,000 by October 31; and £300,000 by December 30.
The judgement makes clear that the settlement of proposed costs was more than OTM wanted to pay, but less than Gascoigne Halman were seeking.
The judgement also stresses that the case of a second agent, Moginie James, is to be heard with that of Gascoigne Halman. The issue of competition is scheduled to be heard in February.
The OTM Action Group yesterday issued the following questions via the trade press:
- Why weren’t members consulted? Should we spend this money on
litigating or should we settle and spend it on marketing? - If there is to be no consultation on such an enormous issue, what
will they ever consult on? - If there are no consultations, what is the point of being a mutual?
- Assuming that the organisation has to divert this money from other
sources, or bring in new capital, how does this affect the likelihood of
founding members ever being repaid their loan notes? - How are they funding the litigation given the relatively small size
of the company? As the judge points out they are financing this litigation out of cashflow! Super risky. - What is Agents’ Mutual response to Zoopla now completely
diversifying away from search and Rightmove being even stronger? - Why don’t the people steering the ship consider being pragmatic and
(consulting on or) making changes to strategy which may give them, and their
members, a different option?
The OTM Action Group represents agents who are disputing subscription levels, claiming that OTM had said that newer recruits would not be paying less than earlier members.
Yesterday, an OTM spokesperson said: “It is standard procedure to provide such security for costs in such cases and to ‘fortify’ financially such undertakings. The funds would only be payable in the event that we were unsuccessful in the legal cases.
“The board and management team of Agents’ Mutual have at every stage of the company’s inception and development taken appropriate legal advice.
“We remain satisfied that the company has operated within the law and are committed to defending our position in the interests of the broad membership by taking appropriate action to ensure that agents meet their contractual obligations and by challenging the allegation of misrepresentation in relation to pricing policy.
“Agents’ Mutual considers it inappropriate under the current circumstances to communicate directly with the ‘OTM Action Group’ through the media.”
Comments (45)
Mr Mealham
On 5/1/13, you can be found via an internet search as having stated
“Agents made them (the portals) equally agents working together can BREAK them.”
WHY, then, are you so vehemently lobbying against the very thing YOU promoted?
Pee Bee why can agents working together ‘ONLY‘ mean in a collaborative ‘other portal’ RM style clone.
There’s more ways to achieve agent unity. In fact I see portals ‘as we know them’ destructive.
Something I and others are working on could form a new portal platform theme. Knowing you like past quotes. Yes I may later from this date be involved in something with portal and other tech that isnt a RM or Z or otm clone. But I promise its different structure would help agents help each other.
But I cant say anything further at this stage.
Portals as we know them bring agents together to fight each other. A better portal would be one that turned competing into collaboration.
Just to recap;
1) Gascoignes sign up as gold members,
2) Then get bought out by Connells,
3) Gascoigne/Connells now do not agree with the AM contract, namely the ‘one other portal rule and take AM to court
4) Gascoignes then complain that they were not asked by AM if they should in effect sue themselves or be allowed to leave their contract.
Or have I misunderstood?
If Agent’s Mutual was the driving force behind the banning of portaljuggling would non members be inclined to support AM’s goals and objectives knowing there was more of the same to come?
One of the group who is non AM has said they would join AM to support further cleaning up of our industry.
Might be worth picking a group that plays fair Robert 🙂
It may not be the best vehicle choice to do righteous things through when it struggles doing the right things itself. Being unfair to many and anti-competitive.
I’m sure some of the government bodies who police and regulate the industry would appreciate more the wonders that Mr May has in his magic box.
Trev I am very clear that the affinity group AM is a strong and worthwhile cause. the very vast majority of AM agents believe in OTM as a product and the rules that go with it.
From a strategic and commercial point of view, no comment about personalities, the product is not capable of delivering the aims of the affinity group, that’s not what products do. To disrupt the affinity group for the sake of the product is madness in my opinion, However an affinity group of 10,500 or so honest agents as James Munro calls them would be a very powerful force for good.
Agent’s mutual is 61% of the way to what I believe is a realistic target of members and effectively incorporates NAEA.
I would hive the issues surrounding OTM off to one side and concentrate on building AM. If the product is good allow agents to use it but don’t force them to.
Robert, just tried to call you.
When you have a moment can you call me back please.
I hear what you’re saying Robert. But you can’t run run a taxi firm where the boss has rules such s driving on the paths, just because it screws some of the other taxi firms who drive on the road as Highways and the police uphold the law of the land.
Consumers would get run over.
In the world of biz, bosses can’t impose trade restraints to favour their own commercial growth, even if they make their own rules up.
So the sad bit is the honest agents wanting better would support an honest ride. The stupid bit is that the boss doesn’t need to impose unfair trade rules, yet chooses to do so and in doing so is putting at risk all those honest agents.
The fall of AM/OTM may be as simple as a few cutting off their nose to spite their face.
Enough rubbish analogies Trevor,
Ian Has to be given credit for what he has built, very few people could have achieved that. Separating membership of AM from compulsory use of OTM and the rules that surround it allows the membership of AM to grow and to be protected from the ravages of the court case and its kerfuffle.
Yikes,
Under the current climate, I wouldn’t touch OTM with a barge pole.
How are they going to increase numbers? Zero marketing budget, no customer service, embroiled in TWO legal battles and a rebel group out for blood.
The strategy has failed, short term pain for Zoopla and RM ascendent.
OTM need a swift change in ethos if they are ever going to survive .
“Under the current climate, I wouldn’t touch OTM with a barge pole.”
Do you seriously think they would, for one nanosecond, consider taking you back?
#eternal_optimist
At OTM’s current member numbers, yeah I reckon they would !
Not that I would ever want to join a portal with terrible leadership, zero marketing budget and a complete lack of providing anything new to the consumer.
PeeBee – give it up mate.
They are a business, why wouldn’t they take him back? Is that how you run your organisation?
wow!
I can’t imagine any sensible business owner agree to take on once more the business of someone who a) did not honour a Contract and b) proceeded to tell the world how allegedly unhappy they were with the company.
And yes – that IS how I would run my organisation if that particular sorry situation ever presented itself.
That being said – I’m surprised that a seemingly educated sort like yourself would reasonably think for one second that the customer would be a grand-scale enough prat to come back for second helpings if they hated the taste first sitting…
Here come them there country folks with pitch forks and burning posts over the hill
Time for those clever judge men from the court room to light the fire soon.
** Law of the land doesnt mean you can make your own rules up and insist theyre right.
Im sure it’s only a matter of time before members get to shut up the haters and talk about that first vote…
AM Board – All. given our membership is no where near the projected numbers, and the current volume is further being propped up by those on a loss-making £50 agreement, we’ve run out of cash to carry out any marketing for 2017.
Our options are to continue as we are and stagnate or for you as members and owners of this venture to inject a cash sum into the organisation.
With this new source of funds, we are confident we will be able to send out enough letters of intent to hypothetically grow our agent base, and we will also be able to pay Ian’s annual bonus for the sterling work he has done this year.
reads. …. together with at least some of its six founder members, was engaged in a wider concerted practice collectively to boycott Zoopla and PrimeLocation.
reads. ….. Gascoigne Halman’s contention now is that the ‘one other portal’ rule breaks competition law.
** CARTEL / ANTI-TRUST
EU Articles 101 / 102 in competition law
Mr Mealham
I’ve had a really long night at the computer… my Rummaging reserves are, frankly, depleted. I can’t be chuffed to search for one more chuffin’ thing.
Could you please advise when the Legislation you quote – “EU Articles 101 / 102 in competition law” – was invoked?
Thank you.
In estate agency you’ll find sections apply to the 3 counties and Trinity Newspaper cartel in recent times.
Equally in the UK RM and Z are prime. But in N Ireland they are not. OTM boycotted by meetings Property Pal which comes under geographical cartel.
Also online only agents have not been allowed in. As such ‘AM’ members supporting embargo rules on other lawful to trade agents could sadly ‘as a company warrantied by guarantee of its members’ cohld drag a lot of agent members under the cosh’
AM members deserve their vote now as to crazy rules that could cost members £millions.
Okay… so I’ll take it from the above response that you don’t know when.
I’ll take a guesstimate from you. Might it have been before September 2014?
Quite poss PeeBee.
Don’t tell the Mrs, but I couldn’t tell you what time my kids were born either without looking it up. I simply know that they were born as a fact.
Too deep Pee bee, Its nearly the weekend my friend,
Mr Mealham
I have the memory of a goldfish with alzheimer’s – so I will excuse you for not knowing exactly when the relevant piece of Legislation was thrust upon us by Brussels. It was certainly pre 2014… the furthest back I can trace on a quick search (credit: Rummage4) is 2008/9 – so with this fact now firmly established I would like to take you back to September 2014 if I may.
EYE published an article entitled ‘Estate agency group bows out of Zoopla in exchange for OnTheMarket’. Having, as you state, a poor memory for important historical markers regardless of how they personally involve and affect you, you mat well not recall that the article covered the move by the 240-branch network that make up the Glasgow Solicitors Property Centre from Zoopla to OnTheMarket.
It told of a mutual joining a mutual. Of ditching the behemoth portal Zoopla in order to comply with OTMs One Other Portal membership requirement. Of the recognition of the “strategic aims” of Agents Mutual, including that (OTM) “gives us the opportunity to regain control of our online advertising costs and of the presentation of our property content.”
If you don’t remember the article – then you won’t remember your involvement with it. Allow me:
“Good move… Then well done Scottish agents for leaving Zoopla… With less content sites like RM and Z will suffer… I understand Zoopla allows upto 200 budget models in… Looks like theyve just lost more tban that in one swoop.”
and
“Both RM and Z will still be viable routes for a FEW years – BUT with less content (ie houses) the public won’t favour them so much… Proper agents are dong the right thing in taking valuable SEO content away from the big portals… What your not seeing is that if propertes are NOT on RM or Z then they can’t be SEO optimized and will be found elsewhere… The way the UK market CAN RUN isnt just down to where properties are advertised.”
So… help me out here if you will.
IF it was so wrong then – and we have established that “EU Articles 101 / 102 in competition law” were at that point enforceable Legislation that you are… and were then… clearly uberclued up about –
WHY weren’t you jumping up and down quoting them and how they would not just rock the boat or even sink the ship – but they would actually raise the tides to a point that would swamp the lands for a millennium of Sundays to boot.
WHY were you welcoming the news?
WHY did you not give any impression whatsoever – the reverse, in fact – that the firms making up the mutual and the 169 SOLICITORS who owned it were on the verge of doing something that would bring about catastrophic consequences?
WHAT THE H£LL changed your personal opinion and stance so radically in such a short timeframe, Mr Mealham?
Hi PeeBee. Okay – going from memory, I do recall a Scottish Solicitors Property Centre case. The big difference is in the beast.
Cats and dogs. Basically the solicitors ‘who also sold properties’ were exactly that. Solicitors.
AM/OTM is a place for agents. BUT, AM/OTM have rules that ban ‘online only agents’. im sure they too wouldnt allow solicitors only in, but may well entertain solicitor agents based in Hg Streets. As such if an online only agent wants to join, they should be able to. But can’t
In the Scottish solicitors property centre, they also don’t allow ‘just’ agents, who are not solicitor/agencies.
I hope the above gives logic
I hope the above gives logic
Not one jot.
You’re banging on about “solicitors this” and “lawyers that” – yet I was calling you out on comments you made clearly referring to “Scottish agents”.
I know that when you’re wazzing against the wind and it’s all coming back in your face that it’s hard to admit the fault is all yours in the first place – but you’ve just got to take it on the chin.
Which is of course exactly where it’s all being blown already…
PeeBee, have a look at this: You’re very right in thought that no one should take placing anti competitive bans on other portals, platforms or agent types.
At INEA do not endorse budget models. However (and not to be confused with online only) we do support the better online only chimeras who work alongside and compliment Hg St agents.
As such if a budget agent wants to join INEA we would have to allow them in (so long as they were a member of redress etc etc).
But have a look here: http://www.journalonline.co.uk/Magazine/60-7/1020495.aspx
Caught by the cartels – 13 JULY 15
Are solicitors paying enough attention to the penal provisions of competition law, as affecting their own businesses?
. …………. the GSPC (Glasgow Property Centre) refused a membership application from a Glasgow based solicitor firm, putting that firm at a competitive disadvantage. The OFT expressed its concern to the GSPC that its admission rules were anti-competitive. The GSPC offered to change its admission procedures to meet the concerns raised by the OFT. The chairman of the OFT was quoted as saying: “It is important for competition, consumers and new businesses that all trade associations have admission rules that are non-discriminatory, fair and transparent.”
The article then went on to tell us that: “Cartel enforcement is one of the key priorities for the new Competition & Markets Authority (CMA) – the body that on 1 April 2014 took over a number of functions of the Office of Fair Trading and the Competition Commission to become the UK’s lead competition and consumer authority.
Consequences of default
Anti-competitive practices include a very wide range of what is, obviously, anti-competitive conduct. Generally, you will know it when you see. These are dealt with as civil offences and by civil penalties.
Cartel offences have been described as “hard core” anti-competitive conduct, and these are true crimes in every sense of the word. As explained by Ms Branch, the crime is committed whenever an individual agrees with one or more other persons to make or implement, or to cause to be made or implemented, arrangements that relate to at least two undertakings and are of a “relevant kind”. The “relevant kinds” of arrangement are ones that (if operating as the parties intend) amount to price fixing; market or customer sharing; agreements to restrict production or supply; or bid rigging. Penalties are up to five years’ imprisonment and/or an unlimited fine; up to 15 years’ director disqualification; and confiscation of assets under the Proceeds of Crime Act.
Seriously guy’s, some of you need to get a life and judging by the amount of time you spend on here and the homework you research for posting here,then you also need to get a job cos if you keep spending as much of your time here as we see then you wont have a job/business for long but I’m sure you get my drift.
One of you pontificates on every single legal point as if you know far better than anyone else and the other just poo poohs everybody else’s point of view if it doesn’t sing the same tune as yours.
Whilst you are both entertaining and to a point, are credible please lighten up a bit.
For Trev posting on here is his job; drumming up business for INEA and promoting MLS. For Peebee this is therapy; Photographing Goths is a depressing and to be honest fairly sporadic career so he just likes to keep his hand in.
Please don’t stop them it keeps the rest of us entertained and we’re happy they do what they do.
Trevor, do you think the fact Gascoigne Halman were an original Gold Member therefore signed loan notes and indeed actioned said loans to support the concept makes Gascoignes sound a bit odd now they are crowing about the concept.
If they were to come out with Connells are driving this I would have more respect, but it’s making them look a bit stupid don’t you think?
Or do you think, it is feasible they mis-understood what they signed up to in the first place?
Do you also think as a self confessed guru of all things fair, that IF and I say IF the acquisition of Gascoignes by Connells has not formerly completed then Gascoignes should reel it in, or if it has completed they should have on their website that they are a part of Connells and NOT be advertising that they are a “leading independent estate agent”
What are they? Gascoignes who have changed their mind about OTM or Connells who understandably do not support it? Can’t be both!
Cake and eat it springs to mind!
@ Ric,
Good points Ric.
My opinion (for what it’s worth/ and to some its worth very little) is that they were fed up with portal fees rising and wanted genuinely to support an alternative. The then decision makers would have looked and felt it was a credible change situation and gave support
Loan notes – again their choice and they obviously went in, in full support.
Ric said: is it feasible they mis-understood what they signed up to in the first place?
T: I think that’s a fair observation. PLUS, change of ownership which likely meant some of the change leadership felt otherwise about the AM/OTM side of the business. Would Connells T/A Gascoignes have joined AM – I guess not. So should they have to stay now??
Well on one side is that they bought Gascoignes, good, bad and ugly, warts and all. But if acquisitions come with some bits they may restrict best estate agency practice, would it be right they didnt rectify such bits in the interest of their sellers and landlords?
As for ‘leading independent estate agency’ you’ve got to look on what metrics. But for sure Gascoignes should not be classed as an independent, being a brand now of a bigger agency group. But surely thats a whole new debate to the OTM/AM one. ….
Ric Says: What are they? Gascoignes who have changed their mind about OTM or Connells who understandably do not support it? Can’t be both!
TM: Maybe Gascoignes new masters have done a company check and along with questions like is the Professional Indemnity fit for purpose, do we need to change the cars, does our new brand comply with AML etc etc, ie checking all boxes tick fit to trade along with compliance etc. Then have they simply said does being on AM/OTM best allow us to serve clients if we only do one of the two main portals. If not, then maybe they see a failing in relation to the 79 Estate Agents Act.
Equally, as the judge mentions competition law, have Connells questioned whether continuing to support AM/OTM that bans ‘online only agents’ is anticompetitive, and thus something they couldn’t support.
You’ve asked my thoughts, above are some. But Connells have obviously their own remit, serious enough that they feel they have to make a stand in their best interest for their own reasons.
My view is that with AM rules being unfair on others, any agents maybe prior unaware who had supported in good faith, now need to look close at what has been raised and the direction things are heading.
With AM not opening issues to one vote per member. The only option is to express reasons to saying, or leaving and vote after taking their own legal advice.
Connells have taken advice and made their play. How many small agents still think the waters are calm, just because Captain Smith thinks the iceberg isn’t really a problem.
Quick skim through your comments, thanks Trevor…. BUT and I say but with a smile to the T & C’s man…..
BUT – You cannot claim to be “an areas leading” I was under the impression ASA rules forbid agents to be called things they cannot justify! So leading? Leading what?
@ Ric – I agree, there has to be a metric of measure and whatever the flavour, another would argue that their metric gained lead position for something else.
Whats more, with connells s parent company, Gascoigne (even if the leading agent’ for whatever metric, should not be classed as independent.
@codingdobby, I think we need more popcorn!
What has the democratically elected president of Agents Democratic Republic of AM.have to say on this? I mean reall say, not this hollow press release tempplated stuff.
I think it highlights that this is a mutual in name only . The differentiator between the cheaper £50 package and full whack at £350 was that those paying on the cheapy didn’t get a vote …. Seems kind of hollow when nothing is ever voted on, good to give the masses an illusion of control though
oh my danny, I almost want OTM to charge £25 pcm for a new member to change your record.
Do you think Virgin/Sky etc asked their shareholders permission to drive new members by offering a deal to new customers.
I get you are not a AM/OTM fan, I am becoming less of one as the days go on….. but give the £50 bit a rest.
But have the acted as a mutual ?
should they have consulted members before spending the members money on suing other members?
if the one company one vote was not deeemed required on such massive spend decisions that have far reaching implications, when would it be required or used?
a judge will inevitably decide the legality of wether misrepresentation was used to entice members into a contractual agreement, but its members can decide now if they should have been consulted before MUTUAL was put in such a precarious position risking non return of members loan notes instead of building a much need audience for the portal.
So you believe that actually instead of having a board to run a company, that every single member should be involved in every single decision made!?!
Has that happened at any company you’ve worked for…. EVER?
I AM a member of OTM and I think my voice counts a little more than yours as you ARE NOT a member, and I am happy that if Gascoigne Halman, or lets be honest about this Connells, are allowed to get out of their agreement, and then of course others, who would no doubt try similar, would directly take money out of the marketing budget I benefit from. So yes OTM should defend it.
What I find somewhat harder to understand is exactly why a so called action group whose mission was to get out of the contracts themselves for whatever reason, lists “why were we not consulted” as their first point. That just smacks of a pathetic attempt at a propaganda attack from the few of the partisan agents you reportedly represent, If in fact Mr White you still represent THEM, as opposed to your own self interest.
I don’t think he’s suggesting that a company should be run be run by voting on every single issue . He’s pointing out that a mutual formed on one company one vote should probably have a vote at some point …
Sorry Danny are you a member also?
@realagent
Where do we buy paper clips. Do we buy staff audi’s or bmw’s. Fine. Board decides.
But do we continue in a cartel like way.
No way. Now the courts are taking competition law which obviously the board werent too bright to know where their rules could lead.
I’d say members more than ever should have a right to vote on this one.
Ummmmmmm: AGENTS’ MUTUALs website reads:. http://www.agentsmutual.co.uk 3. 100% agent-owned and agent-controlled (REALLY) 4. Each firm has an equal interest and voting right, irrespective of firm size (OR NOT) ** A company limited by guarantee does not usually have a share capital or shareholders, but instead has members who act as guarantors. The guarantors give an undertaking to contribute in the event of the winding up of the company. £2,000,000 divided 7000 = £285.71
Well Trevor you don’t work or are employed by Agents Mutual so with respect, what you think should be voted on, really isn’t up to you now is it.
The CEO and the board of OTM were appointed to run the company and that is what they are doing, not everyone may agree with every decision but thats life and its also wholly irrelevant. Those individuals have an option should they so wish, to make their disagreement known to OTM direct I’m sure.
This situation is nothing more than a company defending its contracts which actually IS in the best interests of its majority of members.
Personally I think its a bit tragic that people like you grasp at virtually any opportunity to attack OTM, the puerile hatred that you and some others on these pages, spew every time an article is produced about OTM does you no credit whatsoever.
Some may have missed the comment where you actually go as far as to suggest the members of the board are dim? I think, to a person, many of them have proven themselves within our industry, whilst you on the other hand……..
We also had attack letters. So actually it does involve me.
Do I work? I worked hard to build up two very successful offices. Both were bought out due to high in area trade levels.
Now with INEA I work 3-4 times harder than when I was an agent.
Youre on here a lot too. Do you not work?
Trevor I didn’t ask you if you worked.
Perhaps next time read the comment you are posting a reply to. It avoids embarrassment.
@ RealAgent
Now I didnt say the OTM directors were dim, did I !!!
Im sure all or most are pretty intelligent and successful in their own agency fields. BUT AM/OTM isn’t an agency play, Its a media and prop tech play of which Im sure its not their specialist area.
Equally EU law (and we haven’t Brexited yet) means competitors can’t simply set up cartel like platforms that embargo or place restraints on others in the UK.
As such I can see how some intelligent operatives in their own field could make a dim move in another sector.
I can’t suggest you don’t wear Rose Tinted glasses. But making comments such as:
RealAgent: This situation is nothing more than a company defending its contracts which actually IS in the best interests of its majority of members.
TM: RA your comment doesn’t fit in best interest when a judge comments: Mr Justice Roth says “this is a serious allegation” – that Agents’ Mutual, “together with at least some of its six founder members, was engaged in a wider concerted practice collectively to boycott
We have! We voted on Products! What else is there to vote about?
I am pretty sure it goes without saying the supporting members would vote in favour of OTM defending their position! Would be a touch daft and condescending to perhaps even put the question out there! But for you danny, did you expect to hear us report this set of vote questions:
All OTM Members – Would you like AM to:
A = Defend their position against this action group.
B = Not defend and accept the action group is right.
C = Ignore said case and pretend it doesn’t exist.
The One Other Portal Rule was also voted for! It was called sign up if you believe in it and don’t if you don’t.
To have paid loan notes as a Gold Member, I think it makes Gascoignes look pretty stupid they should now raise questions over the ethics of the membership or be honest and say Connells are driving this.