There must be something in the TCPA water right now for Keller Williams.

They are getting obliterated.

First they paid $40MM to settle a TCPA suit.

Then they lose a major jurisdictional motion suggesting they’re liable for the calls of their franchise agents.

Then they face another major class action claiming they do not honor text stop requests across agencies.

And now an individually-sued Kelley Williams agent just loses a bid to deem a third suit too closely “related” to the other suits to proceed.

My goodness.

PLUS the lawyers involved here apparently filed a motion to dismiss claims that did not exist AGAIN– that’s the second time in two days I have seen that, and I had never seen it it before yesterday.

What in the world is going on out there?

Anyway, in Garvey v. Keller WIlliams, 2024 WL 1857216 (D. Nv. April 26, 2024) personally sued agent Britney Gaitan moved to dismiss the TCPA class action arguing it was too closely related to the Havassy case to allow the new suit to proceed separately.

The Court disagreed.

As explained in the opinion, the Havassy case is based upon calls made by two Keller Williams agents Peter Hewitt and Kelly Houston. But calls by those agents were carved out of the class in the Garvey case. Specifically the class definitions exclude “all persons that received calls on their cell phones which contained a pre-recorded voice identifying Peter Hewitt or Kelly Houston of Keller Williams.”

Gaitan argued the exclusion of calls by Hewitt and Houston was done in the bad faith but the Court disagreed and reminded Gaitan that it was actually perfectly fine: “I do not interpret Garvey’s timely-filed and permissible amendment as an act of bad faith simply because it responded to concerns Gaitan raised in her initial motion to dismiss.”

Completely agree. When a party raises an issue and the other party fixes that issue the first party can’t complain and say the fix was done in bad faith. It was done to, you know, fix something. And that’s what happened here.

So the result for Keller Williams is that it is being sued for calls made by two agents in one case and calls made by all its other agents in another case.

How fun for it.

Its raining hard for KW right now, and whatever it is their doing from a legal perspective it just ain’t working folks.

But finishing up on Gaitan’s motion (she has separate counsel from KW) it looks like her lawyers did that magical thing where they attack claims that don’t exist. How marvelous(ly awful):

B. Claims Predating the Deshay v. Keller Williams Realty, Inc. Settlement

Gaitan argues that any claims before December 13, 2022 were either settled or released by the settlement in Deshay, so I must dismiss any claims arising before December 13, 2022. In the FAC, Garvey changes the timeframe in his putative class definitions to include only claims from December 13, 2022 to the date of certification. Because the claims Gaitan seeks to dismiss are not included in Garvey’s proposed class definitions, I deny this portion of Gaitan’s motion as moot.

C. Automatic Telephone Dialing System

Gaitan moves to dismiss any of Garvey’s claims that are based on the use of an ATDS. However, Garvey does not allege any TCPA violations based on the use of an ATDS system, so I deny this portion of Gaitan’s motion as moot.

D. Text Messages

Gaitan moves to dismiss any of Garvey’s claims that are based on text messages Garvey received from Gaitan. While Garvey includes facts about text messages he allegedly received, these messages do not form the basis of either of his claims. I deny this portion of Gaitan’s motion as moot.

What in the actual world?

Just yesterday I told everyone I had never seen a situation where a law firm had filed a motion attacking a claim that didn’t exist. And today ONE case has a law firm attacking THREE non-existent claims?

What is happening #biglaw?

Can’t charge your clients enough for regular work so time to up the bill with fake work? Really I am truly lost.

Are lawyers just cutting and pasting to a point that they don’t even read what is being filed these days? Just absolutely stunning.

So in the end, KW stuck in multiple TCPA class actions.

Individual agent Gaitan stuck in a TCPA class action and stuck with a legal bill for work that seemingly wasn’t needed.

BTW–yet another reminder that the TCPA is DANGEROUS and can be brought against INDIVIDUALS making calls–individual insurance agents, call center operators and, yes, even realtors. PERSONALLY. As in, for your house, car and personal savings.

What more to say?