Judge refused to reconsider an order granting class certification in case where plaintiffs allege Anywhere allows agents to violate the law to grow its market share of listings.

A federal judge overseeing a lawsuit against Anywhere over cold calls from Coldwell Banker agents has refused to reconsider granting the case class-action status and has set a new trial date in November.

Judge James Donato of the U.S. District Court of the Northern District of California in San Francisco granted class certification in the case on March 23. Anywhere (then known as Realogy) subsequently requested permission to appeal the decision, but the 9th U.S. Circuit Court of Appeals denied the petition on May 26.

At the end of March, Realogy also asked Donato for permission to file a motion for reconsideration of the class certification order in the case. Last week, Donato denied that motion “for lack of good cause” under a civil court rule. The case will therefore continue to move forward as a class action for hundreds of thousands of consumers nationwide seeking millions in damages.

Although the case was previously scheduled to go to a jury trial this week on August 22, Realogy asked to push that date into next year while the plaintiffs asked for a November trial date. Donato agreed with the plaintiffs and set trial for the Monday after Thanksgiving, November 28 at 9:00 a.m. Pacific. The court has scheduled a pretrial conference in the case for November 10 at 1:30 p.m. Pacific.

Whether the case will settle before then is an open question. In a legal filing at the end of July, Realogy said it had scheduled a mediation to continue settlement negotiations on Thursday, August 25.

In a suit first filed in June 2019, the plaintiffs — homeowners Sarah Bumpus of California, Cheryl Rowan of Minnesota, and Micheline Peker of Florida — allege they received, without their consent, unwanted calls from agents affiliated with Realogy’s Coldwell Banker brand asking them to list their homes for sale. Rowan and Peker also allege they received prerecorded messages from Realogy agents.

The plaintiffs allege the calls and messages violated the Telephone Consumer Protection Act (TCPA) which prohibits making unsolicited autodialed calls to consumers without their consent, including calls to consumers registered on the National Do Not Call Registry.

The plaintiffs allege that Realogy’s motivation in allowing its affiliated agents to violate the TCPA is to grow its market share of listings, at least in part to use its market power to raise the prices on the homes it has for sale, “since fewer competing listings can undercut the real estate brokerage with lower home prices.”

The TCPA prohibits anyone from contacting consumers for commercial purposes using an autodialer without consumers’ prior written consent and carries statutory damages of $500 per violation or willful damages of $1,500 per violation — fines that can add up to millions or more depending on the size of the class.

The three classes the federal district court certified are:

  • A “National Do Not Call Registry Nationwide” class made up of anyone in the U.S. who received two or more calls from a Coldwell Banker-affiliated agent using a Mojo, PhoneBurner, and/or Storm dialer in any 12 month period on a residential landline or cell phone number that appeared on the National Do Not Call Registry for at least 31 days between June 11, 2015 and the present.
  • A “National Internal Do Not Call” class made up of anyone in the U.S. who received, in any 12-month period, two or more calls promoting Coldwell Banker’s services and made by a Coldwell Banker-affiliated agent to their residential landline or cell phone number between June 11, 2015 and the present.
  • A “National Artificial or Prerecorded Message” class made up of anyone in the U.S. who received a call on their residential telephone line or cell phone number with an artificial or prerecorded message through one of the above-mentioned dialers from a Coldwell Banker-affiliated agent between June 11, 2015 and the present.

Email Andrea V. Brambila.

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