Keller Williams and agent hit with class action telemarketing suit

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Months after Keller Williams Realty agreed to pay $40 million to settle a class action lawsuit alleging its agents made unsolicited, pre-recorded calls to consumers without their consent, the major real estate franchisor is facing another, similar suit — along with one of its agents.

On Monday, Las Vegas resident Wayan Garvey filed a complaint seeking class-action status in the U.S. District Court of Nevada against KW and KW agent Britney Gaitan. The complaint alleges KW and Gaitan violated the Telephone Consumer Protection Act (TCPA), which prohibits making unsolicited, pre-recorded telemarketing calls as well as telemarketing calls and text messages to phone numbers registered on the National Do-Not-Call Registry.

Many lawsuits have been filed against brokerages and franchisors under the TCPA. Although calling expired listings is a time-honored way to drum up business in real estate, being on the receiving end of such cold calls is not always welcome. Exasperated homeowners sometimes even get local authorities involved to stop the seemingly endless stream of agent calls.

“Keller Williams directs its [R]ealtors, such as Gaitan, to make unsolicited telemarketing calls that solicit their services,” the June 12 complaint said. “The calls utilize prerecorded messages. Keller Williams also directs its [R]ealtors to send unsolicited telemarketing text messages. These calls and text messages are made to individuals on the National Do-Not-Call Registry.”

In an emailed statement, KW spokesperson Darryl Frost told Inman, “We are aware of the filing and investigating the allegations. As a matter of policy, we require our franchisees and their real estate agents to comply with all laws, including the TCPA.”

The complaint calls out allegedly “relentless marketing practices” from Keller Williams and its agents, including a partnership with lead provider Landvoice Data, which generates personal phone numbers associated with expired listings in multiple listing services (MLSs) as well as for homes near those expired listings.

“Landvoice integrates with dialing and texting software, such as Keller Williams’ Command software, and allows Keller Williams’ agents to easily export calling lists and place calls and texts,” the complaint said.

“Many of these telephone number are registered on the National Do-Not-Call Registry. Keller Williams also provides its agents with a web-hosted platform that enables its relators (sic) to make marketing calls and send marketing text messages en masse to those numbers without the recipients’ consent.”

The complaint stresses that Keller Williams, through Landvoice, instructs its agents to cold call “daily expired” listings as well as “old expireds” and provides agents with scripts for calling, including a script that warns homeowners they’re going to get dozens of calls from agents.

“Keller Williams recognizes that many other companies use this same technique, and that the recipient is likely to receive 30-50 calls on every phone number that can be found, yet they call anyway and encourage this aggressive tactic,” Garvey’s attorneys wrote.

According to the complaint, Garvey registered his cell phone number on the National Do Not-Call Registry in July 2006, but nonetheless, without his consent, began receiving unsolicited marketing text messages and phone calls from KW and Gaitan around April 26, 2023 because his property had been listed for sale in 2019 and was therefore on an “old expireds” lead list from a KW vendor.

The complaint seeks $500 per violation and $1,500 per willful or knowing violation stipulated under the TCPA for two classes the complaint says could number in the hundreds or thousands:

• all persons within the U.S. to whose telephone number defendants placed a call using a prerecorded voice from four years prior to the filing of the complaint to the date of class certification
• all persons within the U.S. to whose telephone number defendants placed two or more telemarketing calls in a 12-month period when the number to which the calls were made was on the National Do-Not-Call Registry for more than 30 days at the time of the calls from four years prior to the filing of the complaint to the date of class certification

“Mr. Garvey and the classes were damaged by the violations alleged herein,” the complaint said. “Their privacy was improperly invaded, Defendants’ calls and text messages temporarily seized and trespassed upon the use of their phones, and/or they were forced to divert attention away from other activities to address the unwanted telephone calls and text messages. Defendants’ telephone calls and text messages were annoying and a nuisance, and wasted the time of Mr. Garvey and the class members.”

Not every TCPA lawsuit against a real estate company also sues the agent soliciting the consumer, but it shouldn’t be a surprise, according to Shaun W. Pappas, a partner at Starr Associates LLP, a New York law firm unaffiliated with this case.

“Typically, in the U.S., the theory for a lot of litigators is you sue everybody involved and you kind of let the courts figure it out as far as who’s actually liable,” Pappas told Inman in a phone interview.

“So under the Telephone Consumer Protection Act if there is some sort of violation and there’s an agent that’s the individual that is alleged to be violating the act, I’m not surprised that that individual would get sued as well.

“Obviously, you’re acting on behalf of the company that you represent, but you also have individual responsibility to comply with the law. Whether they’re ultimately going to be held personally liable, I would think is a high burden, like individual liability, but I’m not so surprised that that they were sued.”

In January, KW agreed to pay $40 million to settle a class action TCPA suit, but that settlement only resolved claims in TCPA cases filed against KW by attorneys Stefan Coleman and Avi R. Kaufman of Miami.

As part of that settlement, Keller Williams agreed to create a TCPA task force to “enhance compliance” with the law; to make the existing TCPA and Do Not Call resource page on the franchisor’s intranet, KW Connect, more visible to its franchisees and affiliated agents; and to provide additional materials to its franchisees about TCPA and DNC compliance that they can use with their affiliated agents.

Asked whether KW had taken these steps, Frost said, “We are complying with our settlement obligations.” The company declined to comment further.

Gaitan did not respond to a request for comment.

Editor’s note: This story has been updated with an additional comment from Keller Williams.

Email Andrea V. Brambila.

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