TCPA PLATFORM RISK REMAINS: Recent Motion Against Mojo Dialer Highlights TCPA Risks to Platforms

Editor’s Note: I almost never get things wrong, but I did here, so this is me taking my lumps. But also there are important take aways for platforms.

As a blogger you’re going to have good days and bad days.

Today wasn’t the best day for me.

I was reviewing the docket on the big Realogy case and came across a seemingly new motion for summary judgment against Mojo. I thought this was a fascinating development considering the case had been certified a while back and was headed to trial in November:

But it turns out the motion was actually just re-filed from back in February before the case was certified. In fact, Mojo has since been dismissed from the case!

Now its not everyday that an MSJ is re-filed against a dismissed party–its kind of unheard of actually– so I am going to cut myself a little slack here. Still it was absolutely WRONG of me to imply that Mojo was facing catastrophic damages in this case. It is not (Coldwell Banker and Realogy may be–but Mojo is out of the case.)

On the other hand, the lessons of the motion are important for platforms, and I am going to re-post the CLAIMS of the Plaintiff–all of which Mojo tells me are demonstrably false–so that platforms know what sorts of things to AVOID (again, not saying Mojo did these things, these were just the claims made in a lawsuit that was later dismissed as to Mojo):

First, Mojo controlled the sending and timing of Realogy agents’ messages. All the Realogy agents’ prerecorded messages transmitted to class members were stored and saved on Mojo’s cloudbased system. See Snyder Decl. at ¶ 44. For every call resulting in transmission of a Realogy agent’s prerecorded message, Mojo itself dialed the call using its own telephone line and number. Snyder Decl. at ¶¶ 37-56; Snyder Rebuttal Decl. at ¶¶ 21-25. Every time a Realogy agent elected to leave a prerecorded message, Mojo itself determined exactly when to deliver the message after the agent had already moved on to another call. Snyder Decl. at Ex. C at 15 (“Drop Msg … You do not have to wait for the beep; as soon as you know it is a voicemail/answering machine, you can select this result; Mojo will wait for the correct time to leave your message.”). And every time a Realogy agent initiated a session using Mojo’s triple line dialer, Mojo required them to record a callback message that Mojo had the discretion to deliver anytime Mojo made a call that connected with the call recipient before the agent was available to join because they were on another connected call. Mangold 45:19-46:25. See In the Matter of Dialing Services, LLC, 29 FCC Rcd. at 5544 (highlighting as relevant that the dialing platform helps users record the messages, stores the prerecorded messages on its servers, and through its software—not the user’s action—actually “plays” the sound recordings to the called party after detecting that the call was answered by a live person).

Second, Mojo controlled the recipient list of Realogy agents’ messages. Mojo has been selling different types of leads to agents that subscribe to Mojo’s dialer since 2010. Mangold 27:25-28:9, 53:16- 61:23. Mojo sells these leads with the understanding that they will be used for cold calling. Mangold 48:16-49:16. Mojo has more than 75 million leads for real estate agents to call in its database. Mangold 54:2-23. Mojo also contracts with other companies providing similar leads to agents, like RedX and Cole Realty Resource, to allow those other companies to load their lead lists directly into Mojo’s platform for agents to call using the Mojo platform. Mangold 69:13-73:6. And Mojo knows that none of these leads gave consent to receive these prerecorded calls and messages. Mangold 170:5-9. They would have had no opportunity to do so, because they are included on lists of aggregated numbers designed to allow agents to call them randomly and indiscriminately, regardless of whether such calls violate the TCPA. See Motion for Partial Summary Judgment against the Realogy Defendants at II.G. Mojo therefore controlled to whom prerecorded messages were sent – i.e., to consumers without their consent. See In the Matter of Dialing Services, LLC, 29 FCC Rcd. at 5544-45 & n.48, ¶ 18 (finding relevant that the dialer provider “may, among other things control the numbers to be dialed (e.g., by providing voter lists)”).

Third, Mojo willfully enabled, and indeed required, Realogy agents’ fraudulent spoofing of their telephone numbers. Mojo required agents to supply a telephone number that would be displayed as the caller ID for outbound calls even though it was Mojo’s own telephone line and number that was actually being used to make those calls. Mangold 90:11-91:11, 92:20-93:5; Snyder Decl. at ¶¶ 42-43. Accordingly, an agent could input their real number to allow call recipients to call them back, or (more likely) they could put in a fake number to make it difficult to trace the call to the perpetrator of the illegal prerecorded call or message. Indeed, Mojo touts the lack of traceability of phone masking as a selling point to its customers. On its website, it “STRONGLY suggest[ed]” the practice of “[r]otating your office number, home number and cell number” to give agents “a level of anonymity that will allow you to cycle the lead multiple times before showing up on their ‘irritation’ meter.” Exh. A at Exhibit 18 ( mojoid-to-maximize-their-prospecting-efforts/ (last accessed Apr. 8, 2020)) (capitalization in original). Mojo even sold telephone numbers that could be used as the spoofed caller IDs for outbound calls. Mangold 88:17-89:8. Mojo, like other companies that offer dialer platforms, did this to increase the likelihood that calls would be answered. Snyder Decl. at ¶¶ 42-43. Mojo therefore facilitated the fraudulent spoofing of  ts own telephone number with Realogy agents’ and other telephone numbers. See Ytel, 2020 WL 1156909, at *3 (finding that platform provider enabled fraudulent spoofing by selling subscribers local numbers to display as caller IDs which the dialer provider explained “enable[d] its partners to [e]stablish a local presence by using a phone number that matches [their] recipients [sic] area code”).

Finally, and of particular importance, Mojo knew about and assisted in Realogy agents’ TCPA violations. Mojo supplied cellular and residential telephone numbers for the agents to call using the Mojo dialer, notwithstanding Mojo’s knowledge that agents did not have consent to call those numbers. E.g., Mangold 119:22-120:16, 125:10-129:7, 162:9 24, 170:5-9; see id. 137:18-141:8. Mojo required agents to prerecord messages that Mojo saved and stored on its system; it supplied bulk lists of millions of non-consenting leads to agents; and it delivered those messages at the time of Mojo’s choosing. E.g., Snyder Decl. at Ex. C at 15; Mangold 45:19-46:25….

Mojo received hundreds of consumer complaints per year arising from agents’ calls using Mojo’s lead list and dialer platform. Mangold 175:25-178:21 & Mangold Ex. 30. Rather than require TCPA compliance from its subscribers, Mojo offered agents a list of individuals and lawyers that have filed telemarketing lawsuits that they could avoid calling to try to minimize their risk from engaging in cold calling based telemarketing. Id. 73:19-75:20. Mojo also armed its salespeople with scripts to use to deflect concerns regarding the illegal nature of calls made using Mojo’s dialer. Id. 101:21-106:24.

I want to re-emphasize the court never ruled on this motion and Mojo is no longer in the case and, again– Mojo’s counsel has chimed in and stated the allegations are DEMONSTRABLY FALSE–but there are still some pretty clear takeaways for platforms here:

  1. A platform should never be determining when a message is sent, except at a very basic level (i.e. preventing calls from going out at timeframes when it would be illegal to send them.) The users should choose the timing, duration, type and frequency of calls within a campaign;
  2. A platform should by wary of also supplying data sets. While this is not necessarily dispositive, when a platform is handing out leads to be called it starts to look a lot more like an “initiator” rather than a mere conduit;
  3. A platform should not interfere too deeply with a caller’s choice of outpulse DIDs. Now this can be tricky in the era of 10DLC and attestation requirements–many times a platform is forced into supplying numbers–but keeping tabs on how numbers are being used (and avoiding any form of encouragement around snowshoeing or carouseling) is important;
  4.  But to me the most damaging point is the last one. A platform should NEVER attempt to guide its users in responding to complaints or navigating them around TCPA rules–again except at the high level of assuring coding exists to help assure compliance when deployed properly by the user. If a platform knows a user is violating the law they have to do something to prevent those abuses–and not merely help the caller engineer around the law. Really bad idea.


Sorry for the confusion TCPAWorld. Have a great weekend!


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