Real Estate Industry Faces New Telemarketing Class Actions
A recent slew of class action lawsuits may impact real estate telemarketing.
Real estate brokerage firms should be aware of a recent wave of class-action lawsuits under the Telephone Consumer Protection Act (TCPA), which restricts unwanted telemarketing calls and texts to consumers.
The Telephone Consumer Protection Act (TCPA)
The TCPA prohibits telemarketing calls and text messages to personal phone numbers listed on the National Do Not Call (DNC) Registry without prior express written consent. It also requires a caller to obtain prior express written consent before using an autodialer to send telemarketing calls or texts, even when the number is not on the DNC registry. The law covers any call or text that solicits the purchase of goods or services, including those asking consumers to buy or list a home or property.
These lawsuits can be expensive since the TCPA allows statutory damages of $500-$1,500 for each call or text made in violation of the act. Plaintiffs often target real estate brokerage firms over individual agents, and a class action lawsuit potentially could cover anyone who has received a call or text from the company over the last four years.
Recent Class Action Lawsuits
The following are a few recent lawsuits filed against real estate brokerage firms under the TCPA:
RE/MAX Presidential: A Florida resident sued RE/MAX Presidential in a Miami federal court on August 1, 2019, for using an autodialer to send text messages with phrases such as “Save Save Save Now” and “Is your home still for sale?” without her prior express written consent. She is seeking class-action status for her complaint. Her lawsuit follows three other TCPA lawsuits filed against Florida-based real estate brokerages for unwanted text messages through an automated telephone dialing system, one of which has been stayed and another settled.
Keller Williams Realty: On August 6, 2018, a class action complaint was filed in a California federal district court against Keller Williams Realty, Inc. alleging TCPA violations for contacting the plaintiff on the plaintiff’s home and cell phones in an attempt to market Keller Williams services, without prior express written consent and after the plaintiff repeatedly asked to be removed from the call list. The lawsuit stretches to anyone who has also received unsolicited calls over the past four years from the company.
Coldwell Banker and NRT: A TCPA class-action lawsuit was filed in a California federal district court on April 3, 2019, against Coldwell Banker Real Estate and NRT, alleging that the plaintiff received unwanted auto-dialed calls from three different Coldwell Banker and NRT real estate professionals on his cell phone, which is registered on the Do Not Call Registry. It alleged that the companies instructed the real estate professionals to make the unsolicited cold calls and provided them with telephone numbers and scripts. Here are some ways to protect your business against the growing threat of these potentially costly lawsuits:
Have in place written do-not-call procedures: The procedures should specifically detail how to handle and process DNC requests from consumers and how your company uses both national and company-specific DNC lists.
Conduct employee training: You should train your personnel on these written procedures, and there should be a process in place to monitor and enforce compliance.
Purchase and maintain the national DNC list: The national DNC list (telemarketing.donotcall.gov) should be purchased, downloaded, and scrubbed against your database every 31 days. If your company uses outside vendors, you should obtain written verification that the vendor purchases, downloads, and regularly scrubs the national DNC list.
Purchase and maintain state DNC lists: Many states have elected to use the national Do Not Call list as their statewide registry, but 12 states (Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma, Pennsylvania, Tennessee, Texas, and Wyoming) maintain separate registries. You also should become familiar with any state telemarketing laws that may be more restrictive than federal standards.
Maintain an internal DNC list: Maintain a company-specific list of telephone numbers that your sales personnel may not contact, which should be checked every 30 days against the national and state DNC lists. You should promptly record and honor do-not-call requests.
Understand what is considered written consent: The Federal Communications Commission has adopted TCPA regulations that defines “prior express written consent” as a written, signed agreement identifying the phone number and notifying the consumer that they are not required to sign as a condition of purchasing any property, goods, or services.
As always, you should seek guidance from legal counsel who is experienced in TCPA issues on how you can communicate with customers in compliance with this complex federal law.
Sue Johnson is the former executive director of RESPRO, the Real Estate Services Providers Council Inc. She retired in 2015 and is now a strategic alliance consultant.
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