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As class-action lawsuits continue against major real estate brokerages for alleged telemarketing violations, firms of all sizes are under increasing pressure to strengthen their compliance<\/a> practices.<\/p>\n

According to attorney Michele Shuster, a founding partner of Mac Murray and Shuster LLP<\/strong>, staying within the bounds of federal and state telemarketing laws isn\u2019t just a legal necessity \u2014 it\u2019s vital risk management in today\u2019s regulatory<\/a> climate.<\/p>\n

\u201cObviously, the most important thing is [to] work with an attorney who understands telemarketing, because it\u2019s such a unique area,\u201d said Shuster, whose firm specializes in regulatory defense, government relations and compliance services. <\/p>\n

\u201cWe literally start the day, every day, looking at research on the cases and seeing if there are any new developments at the regulatory agencies.\u201d<\/p>\n

Shuster\u2019s comments follow recent litigation involving Compass<\/a><\/strong> and Keller Williams<\/a><\/strong> in which plaintiffs allege that unsolicited calls were placed without proper consent, in violation of federal Do Not Call (DNC) regulations.<\/p>\n

\u201cIn both of these cases, it was really the do not call laws that they ran into problems with,\u201d Shuster explained. \u201cAnd if they would have scrubbed against the Do Not Call list, or if they would have had consent, or if they\u2019d made an inquiry to them, they wouldn\u2019t have run into these problems.<\/p>\n

\u201cThat\u2019s really the three main areas that real estate agents<\/a> should be focusing on.\u201d<\/p>\n

Keller Williams was also named in a separate Telephone Consumer Protection Act<\/a> (TCPA) suit that was\u00a0filed in Texas in April 2024<\/a>. The suit was dismissed earlier this year due to a failure to state a claim.\u00a0<\/p>\n

Meanwhile, changes to the TCPA \u2014 including a one-to-one consent rule \u2014 went into effect<\/a> late this past January.<\/p>\n

Under the consent rule, anyone soliciting a consumer\u2019s business through a phone call or text message must obtain their written consent prior to sending robocalls or texts.<\/p>\n

The consent provided by the individual must be \u201ca clear and conspicuous disclosure that the consumer will receive robocalls or robotexts and the content of those contacts must be logically and topically related to the website where the consumer gave consent,\u201d according to the\u00a0Federal Communications Commission<\/strong>\u00a0(FCC).<\/p>\n

Offers to buy vs. offers of services<\/h2>\n

Shuster emphasized a key legal distinction in this area \u2014 calls that involve a bona fide offer to purchase a home versus calls that promote an agent\u2019s services.<\/p>\n

\u201cThere\u2019s the people or the agents or the real estate companies who are reaching out that truly just want to buy the home, and so they\u2019re making an offer to purchase that home,\u201d she said. \u201cAnd there\u2019s a case recently where the court ruled on a summary judgment motion that an offer to purchase is not a telemarketing call, and therefore they dismissed the case.\u201d<\/p>\n

But Shuster warned that when an agent offers listing<\/a> services or marketing<\/a> support to help sell a home, the rules change.<\/p>\n

\u201cI really want to distinguish here between \u2026 \u2018I am going to buy your house. I\u2019m not offering you any services or any of those types of things. I\u2019m just truly reaching out to make you an offer to purchase your house\u2019 (type of call), versus a real estate agent reaching out and saying, \u2018Looks like you want to sell your house. And, you know, I can do these things to help you sell your house.\u2019<\/p>\n

\u201cAnd that\u2019s where they\u2019re offering services and they\u2019re really just supplanting a real estate agent. And that is a telemarketing call, because you\u2019re marketing your services as a real estate agent.\u201d<\/p>\n

Who\u2019s most at risk?<\/h2>\n

While large brokerages face complex liability due to their broad networks, smaller operators are far from immune, Shuster said. <\/p>\n

\u201cWith the large real estate companies, they have a lot of agents, a lot of independent agencies, and they have a lot of brokerages,\u201d she said. \u201cSo in a large organization like that, it\u2019s really important to have compliance processes and procedures that percolate down the whole the whole structure. You need to get them to other agencies and the agents and the brokers, and you have to train them on those types of things.<\/p>\n

\u201cIf you don\u2019t have the policies and procedures \u2014 and if you\u2019re not giving those to the right people and you\u2019re not training them \u2014 you have compliance risks there.\u201d<\/p>\n

For independent agents, \u201csometimes, I think it is just maybe a lack of awareness that they are a telemarketer when they\u2019re making calls to sell their services,\u201d Shuster said.<\/p>\n