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Using text message marketing? This class action lawsuit may change your mind

(MARKETING NEWS) A new class action lawsuit may have your team reconsidering whether or not text message marketing is worth the risk.

text messaging

Imagine sitting on the sofa with your family and your phone vibrates. It’s a text message! You’re expecting your brother to let you know if he’ll make it to dinner tomorrow.

But it’s a text from a real estate brokerage, loudly proclaiming an “OPEN HOUSE THIS WEEKEND” in all caps, with a link to the listing.

How did they get your number? Why are they yelling at you? Why doesn’t the link have a brokerage name in the URL? Why would I click that link? Why am I being bothered during family time? Why, why, why?

Most people would block the number and move on, or text “stop,” in hopes that the future barrage of unsolicited texts would stop. We all get them from every direction, nearly every day now.

But not Floridian Steve Grossberg, who took a screenshot of a text message from a Coldwell Banker agent, and hired an attorney. A class action lawsuit has since been filed in the Southern District of Florida, and a court date is set for this Friday, April 12, for Judge Federico A. Moreno to review the case.

The lawsuit claims the text messages were sent without written permission from the recipients (required by the Federal Communications Commission (FCC) since 2012), causing the Defendants “injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.”

Class action status is being sought for this case – Grossberg’s attorneys claim individual cases for all those impacted would overwhelm the court system and be too financially cumbersome for potential individual plaintiffs.

They’re seeking up to $1,500 in damages for each violation, which they say exceeds the $5,000,000 threshold for federal court jurisdiction under the Class Action Fairness Act (CAFA). The “Class” would include anyone in the past four years that have texted by Coldwell Banker or anyone on their behalf, using automated equipment (or an automatic telephone dialing system (ATDS)). Interestingly, in the “Class” description, the attorneys don’t include permission status at all, just “anyone” that has been auto-texted by the brokerage.

Court documents outline in detail the technologies used that allegedly violate federal statues, and Grossberg isn’t just suing the local agent or brokerage, but the international company, Coldwell Banker Residential Real Estate, claiming the text messages sent violate the Telephone Consumer Protection Act (TCPA).

The lawsuit does not outline in such detail, the chain of permission that was or was not given.

Real estate professionals that hire a marketing firm or a tech startup that promises to modernize their marketing, have an expectation that their money is being spent on something that is in compliance with all laws, be they local, state, or federal. Especially if that is what the company being hired specializes in.

Laying it at the feet of the end user (brokerages) is unfair, and it is curious that no service provider is named as the Defendant. Perhaps Coldwell Banker’s pockets seem deeper.

Additionally, the topic of permission is convoluted, as website visitors will often fill out their information when viewing homes, and the IDX provider will use that contact information to send even more information, thus written permission to contact.

Lumping the above activity in with telemarketing spam would be inaccurate. If a brokerage bought a list of phone numbers to cold text without consumers’ permission, that would, however be illegal.

Regardless, in the text message showcased in the lawsuit, the URL provided (ishomenow.com) forwards to listingstoleads.com – Listings-to-Leads (L2L) which says it is a “leading inbound marketing platform with a lead generation system.”

It appears to us that the lead generation company is the originator of the text message, not a specific Coldwell Banker agent or broker.

This Friday will determine next steps in this case, but for now, it is worth investigating your own text message marketing efforts (whether done yourself or through a third party) to make sure proper permissions have been obtained, and that all use is within current federal guidelines, because a potential $1,500 per text message sent in violation of the law would hurt any brokerage.

Be sure to read the lawsuit in its entirety as it outlines the specific behaviors in question, and review this potentially helpful compliance checklist in the meantime.

Lani is the COO and News Director at The American Genius, has co-authored a book, co-founded BASHH, Austin Digital Jobs, Remote Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.

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