Real estate brokerages need to be paying EXTREMELY close attention to the TCPA right now.
The old model of assuming the brokerage won’t be liable for the acts of franchisees or agents is completely out the window when it comes to the TCPA.
Take the example of the (very compliant) eXp Realty, which is still facing a class action TCPA suit up in Washington state.
Its lawyers (not me) challenged the allegations in a complaint contending eXp cannot be held directly liable for calls made by eXp agents.
Not sure that was a bright move at the pleadings stage and it certainly didn’t go well.
In Hollis v. eXp Realty, 2025 WL 2711424 (W.D. Wash Sept. 23, 2025), the Court held the allegations were sufficient to state a claim for DIRECT liability:
eXp Realty argues that it “did not make or initiate” the calls and text messages that Mr. Hollis received, and it asserts that Mr. Hollis failed to sufficiently allege eXp Realty’s direct liability under the TCPA. (MTD at 6.) Mr. Hollis, however, alleges that eXp Realty, along with Mr. Yoon, made multiple calls to his cell phone. (See, e.g., Am. Compl. ¶ 19, 21.) He also alleges that callers told him that they were acting on behalf of, or were part of, eXp Realty. (See Am. Compl. ¶¶ 28 (“The caller…told [Mr. Hollis] that the call was on behalf of [eXp] Realty[.]”), 29 (“[T]he caller identified himself as [Mr.] Yoon at [eXp] Realty[.]”) Furthermore, Mr. Hollis includes supporting allegations that allow the court to draw the reasonable inference that eXp Realty controlled the content of the calls he received: he includes the language of the questions asked in his allegations, and he alleges that the callers read from the same or similar scripts of questions to promote eXp Realty. (See, e.g., id. ¶¶ 19, 27.) In sum, by alleging that eXp Realty made the calls at issue and by including supporting allegations to explain his belief that eXp Realty made the calls, Mr. Hollis includes sufficient allegations, if accepted as true, to allow the court to reasonably infer that eXp Realty is directly liable for violating the TCPA.
Hmmm.
The Court also found eXp might be vicariously liable for the calls based on its connection with the agent at issue:
Mr. Hollis alleges that eXp Realty “is aware of and has authorized…or caused its agent [Mr.] Yoon’s illegal placement of telephone calls” to individuals who registered their numbers on the DNC. (See Am. Compl. ¶ 36.) In support, Mr. Hollis alleges that eXp Realty advertises on its website that Mr. Yoon is one of its real estate brokers and that eXp Realty encourages consumers to “Send [Mr. Yoon] a Message” directly through eXp Realty’s main website. (Am. Compl. ¶ 18 & n.6.) Mr. Hollis also alleges that, when he called eXp Realty to request that eXp Realty cease trying to contact him, he spoke with Robin McCue, an individual who was serving as a “Designated Managing Broker” at eXp Realty. (Id. ¶ 23.) Mr. Hollis alleges that Ms. McCue stated that she was Mr. Yoon’s “manager[,]”; that Mr. Hollis’s contact information had been “added to [eXp] Realty’s internal do not call list”; and “that the calls to [Mr. Hollis’s] number would stop[.]” (Id. ¶ 24.) Mr. Hollis also alleges that, after this conversation with Ms. McCue, Mr. Hollis continued to receive calls from eXp Realty, including a call from Mr. Yoon. (See id. ¶¶ 27-29.)
I have flown across the country talking with real estate agents and brokerages about the TCPA. The rules have changed folks. Brokers of record CANNOT expect to walk away clean in a TCPA class action when agents are making calls that violate the TCPA.
You MUST consider having affirmative measures to assure TCPA compliance in place these days– and certainly make sure you aren’t encouraging potential TCPA violations.
The stakes here are incredibly high.
Now I know eXp does things better than most– so I think they’ll end up being ok in this suit in the long run. But many other brokerages are far behind. Pay attention folks!