Exit Realty Florida is a sub-franchise of a Canadian company which intends “to expand the Exit brand throughout the state of Florida with over 350 profitable franchises and 10,000 sales associates.” How does it intend to advertise itself? Unfortunately, it seems to have chosen to use telemarketing. The complaint for this class action alleges the company violated the Telephone Consumer Protection Act (TCPA) by unlawfully sending text messages to consumers.
The class for this action is all persons in the US to whose cell phone Exit Realty Florida, or anyone acting on its behalf, sent a text message advertising its services, between August 22, 2015 and August 22, 2019, using the same type of equipment as that used to send a text message to the plaintiff in this case.
The TCPA makes it unlawful for advertisers to place non-emergency calls to consumer cell phones using an automatic dialing system or an artificial or prerecorded voice unless they have the consumers’ prior express written consent to do so. The term “calls” includes regular voice calls, voicemails, and text messages.
In this case, Exit Realty Florida (legal name Free Fly, Inc.) chose to use short message service (SMS) text messages to advertise its services.
Plaintiff Zoe Galitz received one of them on or around July 29, 2019 on her cell phone. The message read, “We noticed your home is not on the MLS any longer. If you are still looking for buyers please keep us in mind. We are running a 60 day listing agreement for a total of 4.5%. We’ll handle all the marketing, showings and anything else that we need to do to help get your home sold for you. If you are not happy with our services you can cancel risk free, so we’d love a chance for you to interview our team here at EXIT Realty.”
The message is clearly advertising the company’s services and engage it to “handle all the marketing, showings and anything else…” needed to sell a home.
According to the complaint, the impersonal and generic nature of the message is a sign that it was sent as part of a mass mailing through the use of an automatic dialing system.
The complaint says that Galitz never gave Exit her express written consent to receive such messages.
It claims that the company has committed violations of the TCPA and that the violations were knowing and willful.