Bumpus v. Realogy Holdings Corp.

Background

Sarah Bumpus, Micheline Peker, and Cheryl Rowan brought claims under the Telephone Consumer Protection Act against Realogy. The court had certified three classes. Both the plaintiffs and Realogy moved for summary judgment, which asks the court to decide a claim without a trial when no genuine dispute of important fact requires a jury’s decision.

Summary-Judgment Ruling

The court denied all summary-judgment motions. It found extensive disputes of material fact, including conflicting evidence about whether Realogy was responsible for calls made by Coldwell Banker agents through apparent agency or ratification, whether the recipients had given consent, and other facts underlying the claims. The court concluded that those disputes made judgment for either side without a trial impossible.

The court rejected Realogy’s argument that Peker and Rowan lacked standing because they did not remember a call. The court had previously determined that a plaintiff need not remember a call from an agent to have a Telephone Consumer Protection Act claim. For Bumpus, the court found a genuine factual dispute about the calls made to her and whether she had an established business relationship with NRT West. The court also found a factual dispute about Realogy’s policies and enforcement practices sufficient for Bumpus’s request for injunctive relief to proceed.

Cell-Phone Claims and Complaint

Realogy argued that Peker’s and Rowan’s claims were barred because the calls were made to cell phones rather than residential lines. The court rejected that argument as a matter of form over substance. It stated that the Telephone Consumer Protection Act prohibits artificial or prerecorded-voice calls to cellular telephone numbers and residential telephone lines. Because the plaintiffs had pursued the claims under the cell-phone provision and Realogy was not surprised or disadvantaged by the omission from the complaint, the court deemed the operative complaint to allege claims for Peker and Rowan under 47 U.S.C. § 227(b)(1)(A)(iii). The court terminated the plaintiffs’ motion for leave to conform the complaint.

Expert Reports

The court did not rely on the expert reports of Anya Verkhovskaya or Margaret Daley in deciding the summary-judgment motions. It stated that the challenges to those reports would be addressed in a separate order and vacated the hearing scheduled for May 12, 2022.

Disposition

Judge James Donato denied all summary-judgment motions. The order did not decide the Daubert challenges to the expert reports; those matters were left for a separate order.