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September 2021

New Jersey Team Obtains Dismissal of TCPA Class Action

On September 15, 2021, Ronald A. Giller and Jennifer A. Guidea of the New Jersey office obtained dismissal of a class action complaint filed against Century 21 Real Estate LLC in the District of South Carolina. 

The plaintiff and purported class claimed that Century 21 should be liable for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq, and South Carolina’s “mini-TCPA,” the South Carolina Telephone Privacy Protection Act, S.C. Code Ann. § 37-21-10, et seq. (“SCTTPA”), based on pre-recorded calls and autodialed text messages made by an independent contractor real estate agent affiliated with one of Century 21’s franchised real estate brokerages.  The complaint alleged that Century 21 was vicariously liable for the allegedly improper calls because it “knew or should have known” that its franchisee and its agents systematically call consumers with their consent and in violation of the TCPA’s prohibitions.  In support of this argument, the complaint referenced several Century 21 educational materials, as well as third-party blogs, videos and websites. 

The Court reviewed such materials and concluded that none of them demonstrated any control, apparent agency or ratification on the part of Century 21 such that it should be held vicariously liable for violation of the TCPA.   Specifically, the complaint did not allege that Century 21 exercised such a degree of control over its franchisee’s operations – particularly with regard to telephone and text messaging campaigns – that it could be liable for the actions of the agent who allegedly called the plaintiff.  There were also insufficient allegations to support a theory of apparent agency, as there were no allegations that Century 21 created an appearance of authority over the caller and plaintiff did not assert any reliance on a belief that the caller was empowered to act by Century 21.  The Court noted that the same standard applies to vicarious liability under the SCTPPA and dismissed all claims against Century 21.  

Ron Giller is Managing Partner and Jennifer Guidea, Assistant Managing Partner of the firm’s New Jersey and New York offices.  Both practice in general commercial litigation with a focus on assisting national franchisors with a wide-variety of legal issues, including alleged violations of consumer protection statutes, franchisor-franchisee litigation, trademark infringement and breach of non-compete clauses.   

Ronald A. Giller
Jennifer A. Guidea