COLD CALLS CRUSH EXP REALTY?: eXp Realty Faces Massive Exposure in Certified TCPA Class Action Following Thousands of Allegedly Unsolicited Calls–And Its the Cautionary Tale the Industry Needed!

Repeat after me: hire #biglaw in a TCPA class action, expect a #bigloss in a TCPA class action.

You know just two days ago I ranked Avi Kauffman as seventh on my power rakings concluding there was no objective basis to move him higher.

And, of course, the very next day he lands the biggest certification decision of the year.

Unsurprisingly, #biglaw firm McGuireWoods– yes, the same McGuireWoods whose managing partner had to apologize to the court for repeated false citations— was the defense firm that got beaten. Again.

In Usanovic v. eXp Realty, 2026 WL 864633 (W.D. Wash March 30, 2026) the court certified the following class in a case involving unwanted solicitation calls by the real estate giant’s agents:

All persons in the United States who from May 10, 2019 through September 30, 2023 (1) received more than one call made by
eXp Realty agents (2) using a Mojo or Vulcan7 dialer (3) as a result of being obtained as a lead from Mojo, Vulcan7, RedX,
My Plus Leads, or All The Leads, (4) within any 12-month period, (5) where the person’s telephone number had been on the
[NDNCR] for at least thirty days;

eXp argued the case should not be certified contending issues of vicarious liability and consent defeated commonality.

The Court disagreed.

As to vicarious liability the court viewed eXp’s contention that individualized issues always thwart common review the issue to be overstated. Indeed, the Court expressly rejected that argument finding:

 Therefore, the court rejects eXp’s contention that vicarious liability “can only be resolved on a real estate agent-by-real estate agent, andcall-by-call basis.” (MCC Resp. at 11 (emphasis in original).) Rather, the court agrees with Ms. Usanovic that she has met her burden to show that whether eXp is vicariously liable under any theory for TCPA violative calls made by the eXp agents may be answered with class-wide evidence.

Not good.

The ruling on the issue of consent was far more damning however. As the Court sums it up:

Third, to demonstrate that eXp agents’ calls were non-consensual, Ms. Usanovic relies on (1) Ms. Verkhovskaya’s aggregate analysis that excludes calls made to numbers obtained from a source other than Mojo, Vulcan7, RedX, My Plus Leads, and All The Leads, (see AV Report ¶ 54.b), and (2) testimony from those vendors explaining that they provide the contact information of residential telephone subscribers to agents without first obtaining the consent of the subscriber (see, e.g., Mangold Depo. at 9-10, 38 (stating that Mojo does not claim to “have consent for any realtors to call those leads”)). Accordingly, the court concludes that Ms. Usanovic has satisfied her burden of showing that the elements of her claim can be proven with common evidence.

Holy smokes.

The vendors admitted they provide contact info to eXp agents without first getting consent???

That’s wild.

I find it INCREDIBLY hard to believe representatives from Mojo, Vulcan7, RedX, My Plus Leads, and All The Leads all just rolled over and admitted they do not obtain consent for lead data they supply.

So that means either:

1. Avi played fast and loose with the evidence and McGuireWoods failed to catch it; or
2. eXp agents are running absolutely rogue calling people on the DNC list despite no consent to do so.

On the second point I find it far more likely eXp’s agents were calling numbers they obtained not just from the lead vendors in the class definition but that were also available from other sources.

For instance an agent that conducts an open house might get 20 contacts who they would be allowed to call despite their number being on the DNC list. Then, however, they might obtain a list from RedX that also contains those same 20 numbers. That means they would be able to LEGALLY call those numbers despite the fact they appeared on an unconsented list.

Verkhovskaya’s methodology does not account for numbers in an agent’s CRM deriving from other sources in addition to the lead files supplied by the vendor in the class definition. So the case should never have been certified because an individual review of the source of each number would need to be conducted.

In other words, Plaintiff’s certification effort rests upon a sham assumption– that numbers came from one source and only one source. But as anyone who understands the real estate game– or any sales game really– leads may come in from multiple places, some with consent and some without. So just because a number was on a “non-consented” lead list and received a call does not mean the caller lacked consent.

McGuireWoods appears to have missed this critical argument completely– the Court did not address it, suggesting it was not raised at all. Just awful.

Probably didn’t help eXp that evidence existed it encouraged the use of vendors that enabled the alleged rampant DNC violations:

eXp also promoted products to its agents that effectuate mass calling and directed its agents to use such products to reach potential customers. (See, e.g., Mabery Depo. at 23-24 (describing kvCORE, which eXp provides to all agents free of charge); Garcia Depo, Ex. 11 (Dkt. # 60 at 149-201) ( ) at 162 (promoting cold-calling expired and FSBO listings as a means of succeeding as an eXp agent); Garcia Depo, Ex. 10 (Dkt. # 60 at 132-48) ( ) at 136 (promoting to obtain data for expired and canceled listings).

Just terrible.

On the heels of Realogy’s recent $20MM settlement, this certification is the last thing real estate brokerages needed.

Then again, cautionary tale!

Totally avoidable result in my opinion. Brokerages would be wise to heed the warning here:

1. Do NOT promote unsolicited calls to numbers on the DNC and do NOT supply agents with technology that has the ability to engage in such violations;
2. Do NOT encourage agents to buy unconsented leads;
3. Have a strong TCPA policy in place for all agents to follow– this is true regardless of whether you are are an IC or franchise model;
4. Mandate your agents track the SOURCE of leads– maintaining only a single CRM record when leads come from multiple sources will enable a plaintiff’s lawyer to potentially certify a class based on a list of non-consented leads even if consented sources for the lead also exit;
5. Get a compliance review by capable qualified outside counsel to make sure you don’t have massive BLIND SPOTS that can be exploited by the Plaintiff’s bar; and
6. Hire competent, experienced, counsel to defend you in a TCPA class action. Maybe even the MOST EXPERIENCED TCPA counsel on the planet– the folks at Troutman Amin, LLP (if you can afford them.)

And if you want all the cutting edge TCPA information you can handle there are still about 10 tix left for Law Conference of Champions. I will be presenting for two full hours on the TCPA– at my $6k hourly rate that’s a $12k in information right there. And of course this is a full two day event– so the value here is really unbelievable.

Chat soon!