TCPA RISK REAL ESTATE AGENT: Major Real Estate Company Suffers Massive Loss of TCPA Certification Involving Mojo and PhoneBurner Systems

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This is another great people.

Plaintiff’s bar, in particular “#7” Avi Kaufman– have sued real estate companies for the actions of their agents. These are particularly difficult cases to prosecute and certify because agents are usually independent contractors who operate their own businesses, very similar to franchisees. So there is no “control” and the real estate “agents” are only agents of the consumers – they are not “agents” of the brokerage.

Kaufman is still aggressively pursuing these cases, and he just found a big deal in a case in California.

In bump, Case No. 3: 19-cv-03309-JD, 2022 US Dist. LEXIS 52650 (ND Cal. Mar. 23, 2022), the court certified three different classes involving a popular real estate agency that has 50,000ish agents (who will not be named, for now.)

The certified classes are:

(1) A “National Do Not Call Registry Nationwide” (NDNC) class under Rule 23(b)(2) and (b)(3) consisting of “[a]Anyone in the United States who has received two or more calls made through a [Defendant]- Affiliate agent using a Mojo, PhoneBurner and/or Storm dialer during a 12 month period on a residential landline or cell phone number that was on the National Do Not Call Registry for at least 31 days during the period beginning June 11, 2015, present;

(2) A “National Internal Do Not Call” (Internal DNC) class under Rule 23(b)(2) consisting of “[a]all persons in the United States who have received, within a 12-month period, two or more calls promoting [Defendant’s] services and carried out by a [Defendant]- Agent affiliated with their residential landline or cell phone number, for the period beginning June 11, 2015, until today; and

(3) A class of “Artificial or Pre-Recorded National Message” (Pre-Recorded Message) under Rule 23(b)(2) and (b)(3) consisting of “[a]all persons in the United States who received a call to their home phone line or cell phone number with an artificial or pre-recorded message, as indicated by the following call disposition codes: (1) “Drop Message” ( if you are 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 period beginning June 11, 2015, until today.

Classes include over 445,000 unique cell phones–meaning the defendant faces a minimum exposure of $222,500,000.00 at trial. Almost a quarter of a billion dollars!

And that’s assuming each number only received one call, a highly unlikely circumstance.

And in particular, despite the fact that the reports of Anya Verkhovskaya were systematically rejected, the Court in Bumpas gave full credit to his report and methodology – so pay attention.

Systems like Mojo and PhoneBurner are often used by retail agents in the real estate, mortgage, and insurance industries who operate with a great deal of independence. The use of these systems may not even be known to corporate compliance or legal teams, making monitoring and controlling agent behavior nearly impossible.

Like Bumpas shows, however, that mere lack of knowledge or direct oversight is no longer enough to defeat liability here at TCPAWorld. The Court was particularly concerned about the lack of any apparent ability to monitor the agent’s behavior:

The plaintiffs also point to common evidence to show that [Defendant] was willfully unaware that his agents had violated his “do not contact” policy. Dekt. no. 154-3 to 5, 17. [Defendant] stated in its “No Contact Policy” that it would monitor agents’ compliance with the policy. Dekt. no. 154-9 consider. 1. Despite this, [Defendant] had no way to actually monitor its agents’ compliance, and there were no consequences for an agent’s non-compliance. Dekt. #154-14 at 101:13-17, 105:9-12, 205:7-18. [Defendant] encouraged his agents to “keep this call strictly informational” so they “don’t have to join the DNC.” Dekt. No. 154-17 at ECF 24. The evidence also shows that [Defendant] knew that some of the numbers on its call lists were on do not call lists, but did not remove those numbers from the lists. Dekt. #154-14 at 101:1-8.

Eesh.

But it’s the Mojo Lead Store and suite of services that really seem to have given people trouble. As the court stated the facts:

Plaintiffs’ evidence indicates that they can prove Mojo’s liability for initiating the calls because Mojo provided lead lists, which contained thousands of home phone numbers that could be used to determine who to call. Dekt. #154-3-6. Mojo’s sales training manual shows it offered a “main store” that could provide users with numbers for owners of expired and off-market properties and “for sale by” properties. the owner’, as well as a reverse search function to find additional numbers. Dekt. No. 154-12 to ECF 12-13. [A]The gentlemen used Mojo’s “power dialer” to place high-volume calls to homeowners whose numbers appeared on prospect lists. Dekt. #154-13 at 50:11 51:2. The dialer also allowed real estate agents to change their caller ID in order to call a number multiple times. Dekt. No. 155-1 at ECF 37. Plaintiffs also rely on Verkhovskaya’s report to show that they can identify phone numbers that were dialed using Mojo’s dialer and to which pre-recorded messages were given. Dekt. #155-1 at ¶¶ 82-85

Note that “auto dialing” and caller ID changes are cited by the court in support of class certification that have nothing to do with this conduct – these atmospheres are frowned upon and will against companies faced with a discretionary certification decision.

Astonishing as it may seem, this major real estate company now faces direct liability for the actions of its myriad independent agents, despite the fact that the real estate company did not direct or demand the calls in question. Indeed, it is highly likely that the accused was completely unaware of the allegedly unlawful conduct underlying the prosecution – and yet he is exposed to it.

That’s not how it’s supposed to work folks. We’ll keep an eye on that.

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