MARCH 24, 2022. In a huge step forward for consumer protection, Judge James Donato of the United States District Court for the Northern District of California certified three classes in Sarah Bumpus, et al. v. Realogy Brokerage Group LLC (F/K/A NRT LLC), et al. This is a massive class action—plaintiffs allege the defendants made more than 1 million illegal calls to hundreds of thousands of class members on behalf of one of the nation’s largest real estate companies.
Plaintiffs are homeowners who allege they received unwanted calls from Realogy Agents affiliated with Coldwell Banker asking them to list their homes for sale, and they allege these calls violated the Telephone Consumer Protection Act (TCPA). This is a TCPA case brought against the parent company of tens of thousands of real estate agents across the country who are encouraged to aggressively cold call people to solicit their real estate business. In addition to the parent company of all these agents, plaintiffs also named Mojo Dialing Solutions, a power dialing platform marketed to realtors to make up to 300 cold calls per hour.
The classes certified include:
- National Do Not Call Registry Nationwide (NDNC): anyone in the U.S. who has received two or more calls from a Coldwell Banker-affiliated agent using the auto-dialer and lead generation platforms Mojo, PhoneBurner, and/or Storm dialer on any phone number that appeared on the National Do Not Call Registry for at least 31 days between June 11, 2015 to present.
- National Internal Do Not Call: anyone in the U.S. who received two or more calls in a 12-month period from a Coldwell Banker-affiliated agent between June 11, 2015 to present.
- National Artificial or Prerecorded Message: anyone in the U.S. who received a prerecorded message via one of the above-mentioned lead-generation platforms from a Coldwell Banker-affiliated agent between June 11, 2015 to present.
While defendants contested plaintiffs’ expert witness’s methods in calculating the millions of consumers affected (numerosity), the court affirmed that the expert “provided a reliable, valid, and generally accepted method for identifying which phone numbers belong to putative class members.”
Plaintiffs also prevailed in demonstrating that their class representatives’ claims are typical of everyone else in the class and they can fairly and adequately represent the class. The defendant Mojo claimed that calls to one of the class representatives did not constitute telemarketing, yet they used their autodialing system to make calls. As noted in the order, “It is the purpose of the calls, and not Mojo’s characterization of them, that counts.” Regarding questions of commonality, plaintiffs offered evidence of Realogy’s policies which encourage agents to sidestep Do Not Call lists, and the defendant did not provide any evidence to counter that calls were made for anything other than commercial purposes. Plaintiffs ultimately seek injunctive relief so that Realogy adheres to its internal do not call list.
“The Court’s grant of class certification is the first and most important step to relief for the hundreds of thousands of people who receive incessant unwanted telemarketing calls from Coldwell Banker [CB] real estate agents,” said Partner Sabita Soneji. “CB’s parent company, Realogy Brokerage Group, encourages and assists thousands of its agents across the country to use cold-calling to try to solicit business and use power dialers like Mojo to make up to 300 such calls an hour, but fail to provide sufficient training or monitor compliance with federal rules about telemarketing. Indeed, stopping these calls is not in their financial interest. The Court here affirmed that there is an efficient and fair way to resolve all these claims at once, affirmed the methodology and conclusions of Plaintiffs’ data analyst expert, and also shut down most of Defendants’ arguments for trial. This ruling gets us closer to some justice and peace for all those individuals suffering constant invasions from these telemarketers.”
The case is Sarah Bumpus, et al. v. Realogy Brokerage Group LLC (F/K/A NRT LLC), et al., No. 3:19-cv-03309-JD in the United States District Court for the Northern District of California.