Bumpus v. Realogy Holdings Corp.

Background

Sarah Bumpus, Micheline Peker, and Cheryl Rowan sought certification of four classes for claims under the Telephone Consumer Protection Act (TCPA). They alleged that Realogy-affiliated agents made unwanted calls asking people to list their homes for sale, and that some calls used prerecorded messages. Mojo Dialing Solutions was described as an autodialing and lead-generation platform used by real estate agents, including Realogy’s agents.

The proposed classes covered: (1) people who received at least two qualifying calls while their numbers were on the National Do Not Call Registry; (2) people who received at least two promotional calls after asking not to receive such calls; (3) people who received calls with artificial or prerecorded messages; and (4) people who received prerecorded messages through Mojo’s dialing system. The proposed class periods began June 11, 2015, and ran to the present.

Rule 23 analysis

Federal Rule of Civil Procedure 23 requires a proposed class to satisfy requirements including numerosity, commonality, typicality, and adequacy. For the classes seeking damages under Rule 23(b)(3), common questions must also predominate over individual questions, and a class action must be the superior method of resolving the dispute. Rule 23(b)(2) applies when the requested relief is primarily an injunction or declaration affecting the class as a whole.

The court found that the plaintiffs’ expert, Anya Verkhovskaya, used reliable methods to analyze call records and identify large numbers of potentially qualifying telephone numbers. The analysis identified 245,302 unique numbers for the National Do Not Call Registry class, 201,001 unique numbers for the Prerecorded Message class, and 163,543 unique numbers for the Prerecorded Message Mojo class. The court treated the defendants’ objections to the expert’s data and analysis as challenges to the weight of her opinions rather than reasons to exclude them at the certification stage.

The court also found that the named plaintiffs’ claims were typical of the proposed classes and that they could adequately represent the class members. It rejected objections concerning Bumpus’s alleged consent to calls and Peker’s lack of memory about the calls, prior relationship with Coldwell Banker, and concerns about traveling during the COVID-19 pandemic.

For the three Realogy-related classes, the court found that common evidence could address whether the calls were made for commercial purposes and whether Realogy could be held responsible for calls by affiliated agents. That evidence included Realogy’s policies and training, call records, commercial dialing systems, and lists of residential telephone numbers. The court also found that damages could be measured across the classes using Verkhovskaya’s analysis and that a class action was superior because individual recoveries would likely be relatively small compared with the cost of separate lawsuits.

Mojo class

The court denied certification of the Prerecorded Message Mojo class. Although the plaintiffs showed that Mojo provided lead lists and a dialing system used by Realogy agents, the court found that they had not produced evidence showing on a classwide basis that Mojo initiated the calls. The court noted that determining whether Mojo initiated a call required consideration of the totality of the circumstances, including who took the steps necessary to place the call and how involved another entity was in placing it.

Disposition

The court certified the National Do Not Call Registry class and the Prerecorded Message class under Rule 23(b)(3). It certified the Internal Do Not Call class under Rule 23(b)(2). It denied certification of the Prerecorded Message Mojo class.

The court appointed Bumpus as class representative for the National Do Not Call Registry and Internal Do Not Call classes, and appointed Rowan and Peker as class representatives for the Prerecorded Message class. It appointed Tycko & Zavareei LLP, Reese LLP, and Kaufman P.A. as class counsel for the three certified classes. The plaintiffs were directed to submit a proposed notice-distribution plan by April 22, 2022. The court also set a status conference and referred the parties to Magistrate Judge Hixon for a settlement conference. Judge James Donato’s order did not decide the ultimate merits of the TCPA claims.