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Realogy TCPA class action suit headed to trial

Northern California judge dismisses summary judgement motion

Redfin, REX and the National Association of Realtors are not the only real estate industry entities embroiled in litigation. Realogy, which recently rebranded as Anywhere, faces its own legal woes.

The real estate conglomerate lost its bid for a summary judgement in a Telephone Consumer Protection Act class action lawsuit, according to an order filed last Wednesday and first reported by the National Law Review. The lawsuit is now headed to trial.

The class action suit was filed in 2019 in a U.S. District Court in Northern California and centers on an alleged TCPA violation. In the suit, plaintiffs contend they received unwanted, autodialed calls from Coldwell Banker and NRT agents, despite being on the National Do Not Call Registry.

“Companies like Defendant flagrantly ignores the Registry and invade the privacy of consumers with unwanted calls,” the suit states.

Both the plaintiffs and the defendants filed for a summary judgement in their favor in late February 2022.

In issuing his denial, U.S. District Judge James Donato wrote: “As the parties’ own motion papers amply demonstrate, this case is replete with disputes of material fact that a jury will be required to resolve. Each party filed hundreds of pages in briefing, declarations and exhibits with their motions. While volume alone is not necessarily fatal to a summary judgment motion, these filings reflect an almost total disagreement between the parties about the facts of the case.”

Donato also maintains the evidence presented by the parties offers conflicting views on Realogy’s “vicarious liability for Coldwell Banker agents’ calls by apparent agency or ratification, and Realogy’s consent and safe harbor defenses under the TCPA.”

Three separate classes have been certified in the suit. The first class, deemed the “National Do Not Call Registry Nationwide” class, consists of all persons in the U.S. “who received two or more calls made by a [Defendant]-affiliated agent using a Mojo, PhoneBurner, and/or Storm dialer in any 12-month period on a residential landline or cell phone number that appeared on the National Do Not Call Registry for at least 31 days for the time period beginning June 11, 2015, to present.”

The second class, known as the “National Internal Do Not Call” class, is made up of anyone in the U.S. “who received, in any 12-month period, two or more calls promoting [Defendant’s] services and made by a [Defendant]-affiliated agent to their residential landline or cell phone number, for the time period beginning June 11, 2015, to present.”

The final class, termed the “National Artificial or Prerecorded Message” class, includes anyone in the U.S. who received a call on their residential telephone line or cell phone number with an artificial or prerecorded message, as indicated by the following call disposition codes: (1) ‘Drop Message’ (if using the Mojo dialer); (2) ‘ATTENDED_TRANSFER’ (if using the Storm dialer; and (3) ‘VOICEMAIL’ (if using a PhoneBurner dialer) in the call records listed in Appendix A and made by a [Defendant]-affiliated Agent for the time period beginning June 11, 2015, to present.”

In total, the classes include more than 445,000 unique cellphone numbers. This means Realogy could be facing a minimum exposure of $222.5 million at trial.

In order to avoid nearly a quarter billion dollars in potential exposure, Realogy needs to convince a jury it is not responsible for the calls made by affiliated agents.

Requests for comment sent to lawyers for both the plaintiffs and Realogy were not returned before publication.

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