The Northern District of Georgia has been at the center of Telephone Consumer Protection Act (“TCPA”) litigation over the past month. As our readers know, a Georgia federal judge recently found that text messages are not telephone calls for purposes of the TCPA. In another recent decision from the same Court, a Georgia federal judge denied a motion to dismiss, finding that offers to purchase real estate via text message (“Real Estate Texts”) could be construed as telephone solicitations under the TCPA. We discuss the decision in detail below, and what it means for companies that deliver real estate calls/texts to homeowners.
Georgia Court Finds Real Estate Texts Are Telephone Solicitations Under the TCPA
Plaintiff Veronica Bramlett (“Plaintiff”), on behalf of herself and a putative class, filed a lawsuit against two real estate companies (“Defendants”) in the Northern District of Georgia alleging TCPA Do-Not-Call (“DNC”) registry violations. Although Plaintiff’s telephone number was on the DNC registry, the Complaint alleges that Defendants delivered Real Estate Texts to her to inquire as to whether she was interested in selling her property. As a result, Plaintiff filed a lawsuit asserting that the subject Real Estate Texts violated the TCPA. In response, Defendants filed a motion to dismiss arguing, among other things, that the Real Estate Texts at issue were not telephone solicitations within the meaning of the TCPA. The Court disagreed and denied Defendants’ motion.
In denying Defendants’ dismissal motion, the Court found that it could be inferred from the allegations set forth in the Complaint that the Real Estate Texts were advertising real estate-related services, not merely offers to purchase Plaintiff’s property. Viewing the Real Estate Texts in their totality, the Court found that they, coupled with Defendants’ purported business model, plausibly alleged that the text messages constituted telephone solicitations because they encouraged Plaintiff to purchase Defendants’ related real estate services.
Hiring Experienced Attorneys Matters
When evaluating a motion to dismiss, it bears mentioning that courts are required to assume the truth of the allegations pled in a complaint and are not allowed to look beyond the four corners of a complaint (except in limited circumstances). This fact is critical when determining how to respond to a complaint. Notwithstanding the ruling of the Court, this decision highlights the importance of hiring experienced attorneys. Significantly, had Defendants’ counsel argued that text messages are not telephone calls under the TCPA (as this very Court recently concluded), Defendants’ motion to dismiss likely would have been granted.
The attorneys at Klein Moynihan Turco (“KMT”) stay abreast of the latest legal developments in the TCPA space and constantly advance legal arguments that were once deemed “outside the box.” In addition, KMT’s attorneys routinely provide guidance to companies on the most recent changes in the telemarketing law space.
If you need assistance with updating your telemarketing practices and procedures or have been sued for violating the TCPA or a state-level telemarketing statute, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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