/>iCompanies across multiple industries that utilize promotional text messages and phone calls are being targeted by class actions filed under the Telephone Consumer Protection Act. On March 31, 2025, a Nevada federal district court dismissed a putative TCPA class action filed against a real estate company, Berkshire Hathaway HomeServices Nevada Properties because the plaintiff had failed to sufficiently allege that BHHS should be held vicariously liable for marketing calls made by nonparty real estate agents to phone numbers registered on the National Do-Not-Call Registry. The case is Kelly Usanovic v. Americana, L.L.C., No. 2:23-cv-01289-RFB-EJY, 2025 WL 961657 (D. Nev. Mar. 31, 2025).
The plaintiff had allegedly listed her home for sale, and when the listing expired, she immediately received several marketing calls, and calls using an artificial or prerecorded voice, from multiple real estate agents affiliated with BHHS, even though her number was on the NDNCR. The plaintiff claimed the calls violated the TCPA, and that BHHS, which had allegedly provided extensive training on cold calling practices to its agents, was vicariously liable for the calls. She sought to represent two nationwide classes of persons who received similar calls.
The court granted BHHS’s motion to dismiss the plaintiff’s Second Amended Complaint, with prejudice, and entered judgment for defendant. It held the plaintiff had failed to allege sufficient facts to establish an agency relationship between BHHS and the agents. As the Court observed: “To establish an agency relationship, the plaintiff must show that BHHS controlled or had the right to control the real estate agents—specifically the manner and means of the calls conducted. (citation). The essential ingredient in determining whether an agency relationship exists is the extent of control exercised by the employer.”
Although the plaintiff alleged that BHHS trained the real estate agents on how to make unsolicited calls to expired listings and that BHHS suggested where they could purchase phone numbers and dialers, the plaintiff did not allege this training was required, or that the agents had to use the specific vendors that BHHS recommended. Nor did the plaintiff allege that BHHS directed agents on how many calls to make, or that any of the calls occurred under BHHS’s supervision.
The court also held that, even if an agency relationship existed, the plaintiff did not allege facts sufficient to establish vicarious liability under an actual authority, apparent authority, or ratification theory. There were no allegations that BHHS authorized or directed agents to call numbers listed on the NDNCR, that the plaintiff relied on any statement of the agent’s authority made BHHS or by any of the agents who allegedly called her, or that BHHS knowingly accepted the benefits of or otherwise ratified any allegedly unlawful calls.
Vicarious liability has been and will continue to be a hotly contested issue in many TCPA class actions, both in the real estate space and in other industries. It is the plaintiffs, however, who have the burden of alleging specific facts which, if proven true, would establish the defendant is vicariously liable for the telemarking calls or text messages. The Usanovic decision is useful reminder that challenging the sufficiency of the plaintiff’s vicarious liability allegations may be an effective way to stop a TCPA class action in its tracks.
