INTENT DETERMINES MARKETING UNDER TCPA: Ninth Circuit Court of Appeals Clarifies Home Buyer’s Intent to Sell Potential Leads to Real Estate Brokerage Makes a Call Actionable Under TCPA’s Marketing Provisions

One of the most hotly debated TCPA topics is whether offers to buy a home constitute telemarketing under the TCPA’s DNC provisions.

The answer is fairly clear from a legal perspective– only efforts to have a consumer rent or buy a good or service are marketing. not vice versa– but can be difficult to apply in common factual scenarios.

For instance, if a caller buys some of the homes of interested individuals he/she contacts but transfers some contact information to traditional real estate brokerages as leads if the home is not purchase is that marketing?

Well according to the Ninth Circuit Court of Appeals–the answer is yes. That Court held last week that offers to buy that are a mere subterfuge to generate leads for a brokerage DO constitute marketing. See Coffey v. Fast Easy Offer, LLC , 2026 WL 1614175 (9th Cir. 2026).

In Coffey, FEO would send calls and texts from someone named “Yannick the home buyer” testing whether people were interested in selling their homes. FEO would buy some of those homes. But the ones that were not purchased would be sent over to Keller Williams as a lead.

As the Court frames it:

According to Coffey, those homes that FEO does not purchase become leads for the brokerage services provided by FEO and KW Phoenix, with resulting revenues shared between the two entities. The complaint alleges that Tanner is the architect of this strategy and that 9 out of 10 consumers who respond to FEO’s telemarketing calls become clients of either FEO or KW Phoenix’s brokerage services.

In analyzing the issue the Court first reaffirmed previous case law holding it is the intent of the sender and not the content of the message that determines whether a message is marketing.

As I like to say, whether a message is marketing doesn’t turn on the language– it turns on what’s in your heart. 😉

If you intend to send a marketing message… its marketing, no matter what it says.

The Complaint in the Coffey case established the intent of the message was to do more than just potentially buy a home–it was to sell real estate brokerage services.: “[C]rediting Coffey’s factual allegations… one purpose for which Defendants initiated these messages was to encourage the purchase of real estate brokerage services. That is enough to satisfy the statutory definition.”

Simple as that.

Pretty clear take away here for home buying outfits.

Yes, you can make calls to try to purchase people’s homes if you’d like. But if you are trying to monetize leads for homes you aren’t purchasing you CANNOT do so with a traditional real estate broker– that connection converts your call to a marketing call because of the “dual purpose” involved.

Then again the ruling does not address the common scenario of sharing leads with other home buyers. The issue in Coffey is that traditional brokerages offer a service for sale– assistance selling on the market–and are not committed to buying the property at issue. Stands to reason this case would not extend to situations where the caller transfers a lead directly to an interested home buyer.

But we will have to wait for the next case to know for sure. 🙂

If you have questions, Troutman Amin, LLP has answers. Give us a shout.

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