Summary
The Ninth Circuit reversed the dismissal of Vicki Coffey’s putative class action alleging violations of the Telephone Consumer Protection Act. The court held that the alleged calls and text messages could qualify as telephone solicitations because the purpose of initiating them included encouraging the purchase of real estate brokerage services, and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether Coffey adequately pleaded that the calls and text messages qualified as telephone solicitations under the Telephone Consumer Protection Act.
- Whether the purpose of initiating a call or message may be determined from the communications' context and the alleged business strategy, even when the message does not expressly mention a property, good, or service.
Holdings
- Coffey adequately pleaded that the calls and text messages were telephone solicitations because one alleged purpose of defendants' initiation of the messages was to encourage the purchase of real estate brokerage services.
- Dismissal for failure to state a claim was improper because the operative complaint contained sufficient factual allegations to plausibly establish that the communications were telephone solicitations.
Key quotations
“Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.” (at 8-9)
“The messages, therefore, were “initiat[ed] . . . for the purpose of encouraging the purchase or rental of . . . services.”” (at 9)
Factual background
Vicki Coffey, an Arizona resident whose personal cell phone number had been registered on the national do-not-call registry since 2004, allegedly received at least six calls and two text messages from an employee of Fast Easy Offer, LLC in the fall of 2024. The messages asked whether she had given up on selling her Gilbert, Arizona property and identified the sender as a home buyer. Coffey alleged that Fast Easy Offer directed most potential customers to its own employees or Keller Williams associates for traditional real estate brokerage services, with revenues shared between the entities.
Procedural history
Coffey filed a putative class action alleging that defendants violated the Telephone Consumer Protection Act through calls and text messages made to her cell phone. After Coffey filed the operative amended complaint, defendants moved to dismiss, arguing that the communications were not telephone solicitations and that Keller Williams Realty, Inc. was not vicariously liable. The District of Arizona dismissed the complaint with prejudice, concluding that the communications did not expressly encourage the purchase of services. The Ninth Circuit reversed and remanded.
Remand instructions
Remand for further proceedings on Coffey's TCPA claims.