Keller Williams Facing TCPA Lawsuit in 4th Circuit

The Czar is cranky.

Just some weeks in the past I mentioned how the Trump marketing campaign created terrible ATDS case regulation within the Eighth Circuit with an ill-conceived (IMO) bid to problem a TCPA robotext swimsuit on the pleadings stage. Apparently the oldsters at Keller Williams didn’t learn that article and now they—and the remainder of us—are dealing with an analogous (avoidable) mess within the Fourth Circuit.

In Hayhurst v. Keller Williams Realty, 1:19CV657, 2020 U.S. Dist. LEXIS 128877 (M.D.N.C. July 22, 2020) the Courtroom immediately and expressly adopted Marks and rejected Gadelhak in denying a Defendant’s movement to dismiss a putative TCPA class motion on the pleadings stage, that in all probability by no means ought to have been filed. The swimsuit alleged that Keller Williams—via its third-party associates—have been chilly calling potential customers with robocalls and advertising and marketing pitches. Not essentially the most savory of allegations to aim to make new case regulation people.

Importantly, the Fourth Circuit Courtroom of Appeals has but to rule on the TCPA’s ATDS definition however the case regulation had developed pretty favorably. Though TCPAWorld.com formally labeled the Fourth Circuit as yellow—which means “undecided”—there was good purpose to assume district courts within the footprint may lean towards Gadelhak and away from Marks. However that doesn’t imply a defendant in a TCPA class motion must take a shot at defeating a TCPA declare on the pleadings stage—merely a horrible concept. As I defined in my article discussing the Trump swimsuit:

[I]n a TCPA class motion the problem of whether or not an ATDS was used ought to not often be raised on the pleadings stage as a result of it dangers highlighting (certainly resolving) a crucial widespread difficulty in favor of sophistication certification. Most skilled TCPA class motion practitioners, due to this fact, deliver such challenges solely after certification has been resolved or: i) if you’re coping with a positive factor on the pleadings stage; or ii) in settings the place the ruling gained’t apply throughout the category.

In Pederson, nonetheless, the Trump Marketing campaign was not dealing with a positive factor and was dealing with a classwide difficulty. However they took their shot anyway. The Eighth Circuit Courtroom of Appeals–the place the D. Minn. was situated–had not but dominated on the problem of what constitutes an ATDS. And whereas one choose of the D. Minn. had dominated on the problem–rejecting Marks and requiring random or sequential quantity technology–that was not at all binding on the Chief Choose of the District who was set to determine Pederson.

Nonetheless, the Trump Marketing campaign took its ATDS shot early. Slightly than wait till an evidentiary report can be obtainable on the MSJ part–or after defeating certification or winnowing down the category– the Marketing campaign argued that the grievance needed to be dismissed as a result of it didn’t allege random or sequential quantity technology as to any texts to any class member. Daring.

Keller Williams makes this similar play in Hayhurst and the result’s equally disastrous—the Courtroom decided a crucial substantive difficulty that’s widespread to the whole class towards the Defendant pre-certification. So one way-intervention points are waived and a crucial widespread difficulty is highlighted and determined towards the protection. Certainly, there’s merely no means the Defendant can now argue that the techniques utilized by its affiliated brokers will not be topic to the TCPA—the Courtroom has affirmatively determined the crucial difficulty towards it. My goodness.

It will get worse. Remarkably, KW finds itself on this place even supposing the Supreme Courtroom is at present set to rule on the TCPA’s ATDS definition subsequent time period. So whereas most skilled TCPA counsel are assiduously avoiding ATDS rulings and searching for stays pending the SCOTUS overview, KW has rushed in and handed the Marks camp a totally avoidable (and large) victory forward of subsequent month’s briefing within the Fb enchantment. And KW will now be caught litigating the case underneath the shadow of the SCOTUS overview, when the entire case in all probability would have been stayed had they however requested.

Including to the enjoyable, KW additionally handed Plaintiff’s counsel—the ever harmful Avi Kaufman—a giant win on company points. Whereas the Courtroom’s ruling on vicarious legal responsibility is much less substantive—and will carry much less weight at abstract judgment—the allegations of the grievance in Hayhurst robustly asserted management by KW over its brokers. With such a stacked deck, there was merely no purpose to threat creating dangerous law-of-the case– particularly since vicarious legal responsibility points are completely crucial in fits involving purported actual property brokerage legal responsibility for acts by unbiased brokers. So it’s baffling (not less than to me) that KW would threat drawing a adverse ruling on this crucial substantive difficulty with a dangerous pleadings stage assault in a putative class motion, nonetheless. But that’s precisely what occurred in Hayhurst and it’s decidedly unclear whether or not KW will have the ability to get well at later phases of the case.

Sorry for the dangerous information people. I’ve stated it many instances, and I’ll say it once more. TCPA class motion protection shouldn’t be for the faint of coronary heart or the inexperienced of horn.