THE TCPA DANGER REMAINS: Keller Williams Realty Agrees to MASSIVE $40MM TCPA Settlement–But Will it Hold UP?

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For those looking for proof that the TCPA continues to wield its outsized influence among federal statutes–look no further than the latest mega-TCPA settlement hauled in by “Number 7” Avi Kaufman.

This deal–approved by a state court last week for preliminary approval–will see Keller Williams pay up to $40MM to resolve TCPA claims that its franchisee real estate agents illegally called and texted 2,000,000 people.

And for those looking for proof that the TCPA remains an abusive and ridiculous money-printing machine for Plaintiff’s lawyers while doing little to nothing to hep consumers– recognize that the lawyers will make about $10MM bucks on this deal, whereas the consumers–the ones who received the calls–will get about $14.00 each.

Travesty! Ridiculous! Absurd!

Eh, tell it to Congress. They don’t listen to me, apparently.

You can read the settlement here: 14-46-35-122

Few other interesting notes:

  1. This appears to be the largest TCPA settlement in history to be sought in state court. There is likely a story behind that. But I don’t know what it is. :);
  2. KW agreed to a heap of non-monetary relief, including: to (1) create a TCPA task force to enhance compliance; (2) to make the existing TCPA/DNC resource page on KW Connect more visible to KWRI’s franchisees and their independent contractor real estate agents; and (3) provide additional materials to KWRI’s franchisees about TCPA/DNC compliance that they can use with their independent contractor real estate agents.
  3. This settlement would DEFINITELY NOT pass muster under the First Circuit’s recent ruling in Murrary v. Grocery Delivery E-Services USA, 2022 WL 17729630, No. 21-1931 (1st Cir. Dec. 16, 2022). The class definition includes a garbled mess of folks with different and competing claims:All Persons in the United States who, during the Class Period, (1) were called or received two or more calls and/or text messages made by or on behalf of Defendant or any Defendant-affiliated franchisees, market centers, realtors, agents or vendors on a telephone number that (a) appeared on the National Do Not Call Registry for at least 31 days and/or (b) that appeared on any internal do not call list of Defendant or any Defendant-affiliated franchisees, market centers, realtors, agents or vendors; and/or (2) were called or received one or more calls and/or text messages made by or on behalf of Defendant or any Defendant-affiliated franchisees, market centers, realtors, agents or vendors using (a) an artificial or prerecorded voice and/or (b) a cloud based dialing platform; and/or (3) were called or received one or more calls made using an automatic telephone dialing system made by or on behalf of Defendant or any Defendant-affiliated franchisees, market centers, realtors, agents or vendors.
  4. Under Murray a separate attorney would need to be assigned to represent each piece of the class as they tug and pull against each other. Seems unlikely that, for instance, those who received only prerecorded calls and those who received only ATDS calls should be receiving the same amount. Different counsel should–according to the Murray ruling–have bee appointed to represent these different classes. Not saying I agree with Murray btw. But if someone wanted to make an objection to this settlement on the grounds of Murray, well, there you go.
  5. The KW case was NOT certified prior to this settlement being reached. The Coldwell Banker case–scheduled for trial sometime in April or May, 2023–was certified, meaning if that case were to settle it would almost certainly be larger than the $40MM KW just agreed to paid.

Hang in there TCPAWorld.

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

4 Comments

  1. So let me get this straight… Keller – Williams robocalled/ robotexted me on my DNC registered cellphone about 5x’s and maybe if I (later) down-the- road spend a 1/2 hour filling out an online claim form I MIGHT get $14.

    Okay, okay, – “Breathe in – Breath Out”… [VA Psychiatrist Speaking to me in a Soft Tone} …. I am in my happy place and space.

    This is a messed up decision as to the settlment amount… and I get the whole Visalas Issue but if you do a bad thing Y number of times that violates a provision of the tcpa at a rate of $500… then you have to be held liable at the rate of $500 x Y.

    $14 ISN’T GOING TO CUT IT FOR ME, and if the settlement claims administrator ends up sending me a $14 check (a year from now); I will write them, the presiding judge, and party counsel a strongly worded letter explaining the unfairness of the situation.

    Clinton

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  4. “And for those looking for proof that the TCPA remains an abusive and ridiculous money-printing machine for Plaintiff’s lawyers while doing little to nothing to hep consumers”

    Nothing to help consumers? So the fact that a big message was sent to the real estate world regarding cold calling is nothing?
    So the fact that Keller Williams is assembling a task force to combat cold calling is nothing?
    So the fact that Keller Williams will teach agents NOT to place cold calls is nothing? Who wrote this stupid article?

    Do you realize the fact that people are annoyed by the telemarketing calls they receive? I get at least 10 unwanted calls a day. I’m so happy a firm was successful in stopping Keller Williams. Hell, I got calls from them as well. Unwanted. Unsolicited. The attorneys got money. Good. Whatever it takes to stop telemarketing calls, I’m in. Sign me up for the next class action.

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