Stick it to the man - hold the realty company overlords responsible for their agent's calls
- Peter Schneider
- May 7
- 5 min read
If you have ever listed a house for sale by owner, or had a house listing lapse, or just get confused for someone who is thinking about selling your house, this story is going to resonate with you.
In 2024 Ms. Soale attempted to sell her house but apparently failed. What she did succeed at is attracting the attention of the Joshua Jackson Realty Group of eXp Realty.
Ms. Soale sued big eXp, and eXp moved to dismiss under the argument that little Joshua Jackson Realty Group was independently owned and operated, and big eXp wasn't liable for their calls.
its affiliated "real estate agents are independent contractors and not employees." (Doc. 12 at 3). Defendant's real estate agents "receive commission, not salaries, . . . are responsible for their own taxes and benefits[,]" and must "comply with 'all applicable laws, rules, and regulations when providing' services." Nonetheless, the links provided in the text messages took Plaintiff to a website which "prominently features Defendant's logo and branding" and contains "an electronic booklet touting [Defendant's] program to 'guarantee' that it will sell a consumer's home within 23 days."
The usual playbook in these situations is to show that the telemarketer was an agent of eXp in placing the calls and is vicariously liable for them.
Actual Authority
Plaintiff has not plausibly alleged that Defendant actually authorized Jackson to call or text her in violation of the TCPA. The language of the ICA generally provides that all real estate agents associated with Defendant—such as Jackson—must comply with "all applicable laws, rules, and regulations" in any activities associated with Defendant. As noted above, the key issue in assessing actual authority is the agent's reasonable belief that they were authorized so to act. Restatement (Third) of Agency § 2.01. Yet Plaintiff makes no allegation, nor does she argue, that Jackson reasonably believed he was authorized to make calls on behalf of Defendant that violated the TCPA. Thus, even assuming that there was an agency relationship between Jackson and Defendant, Plaintiff has not plausibly alleged that Jackson had actual authorization to violate the TCPA.
Apparent Authority
Though Plaintiff fails to plausibly allege an actual agency relationship under the general prohibition in the ICA, that agreement is not controlling in an apparent authority inquiry. Defendant is correct that Jackson's statements that he was calling on Defendant's behalf cannot establish apparent authority. But Defendant is incorrect in its assertion that it made no manifestations to Plaintiff that Jackson was authorized to act as its agent. Plaintiff alleges that Defendant's website lists Jackson as one of its licensed real estate agents that Defendant's website references that third parties like Jackson may contact consumers on its behalf and that Defendant publicly advertises that it "provides lead generation training and mentorship . . . to its agents". In other words, Plaintiff received messages from someone purporting to work for Defendant and upon visiting Defendant's website, found that Defendant displayed Jackson as one of its real estate agents, purported to provide training for real estate agents like Jackson, and had given Jackson access to its branding and logos. Taken as true and considered cumulatively, these allegations of Defendant's manifestations would plausibly support a reasonable belief that Jackson was an authorized agent of Defendant. Accordingly, Plaintiff states a claim as to Counts I and II under a theory of vicarious liability through apparent authority. Defendant's Motion to Dismiss is denied to the extent that Plaintiff's claims rely on this theory.
Ratification
a plaintiff may seek to impute liability to a defendant for the acts of a purported agent. Kristensen, 879 F.3d at 1014. A defendant may ratify such acts even in the absence of an agency relationship or when such acts go beyond the scope of an existing agency relationship . . . Valid ratification has the same effect as actual authorization such that a principal may be bound to the actions of the agent if the principal "affirm[s] . . . a prior act which did not bind him but which was done or professedly done on his account." . . . Even if "[t]he doctrine of ratification," does apply and the principal manifests their assent—through words or conduct—to be bound by the purported agent's acts, the ratification is only valid if the principal assents with knowledge "of the material facts involved in the original act." . . . For example, a defendant may manifest asset and ratify an act "by receiving or retaining benefits it generates if [it] has knowledge of material facts." (quoting Restatement (Third) of Agency § 4.01 cmt. g). This knowledge requirement may be fulfilled by actual knowledge, "willful ignorance" or by "knowledge of facts that would have led a reasonable person to investigate further." . . . Willful ignorance applies where a defendant does not "know the material facts" but ratifies "with awareness that such knowledge was lacking. Here, Plaintiff states a claim under her ratification theory. As an initial matter, because Jackson did purport to contact Plaintiff on Defendant's behalf, the doctrine of ratification is applicable. Kristensen, 879 F.3d at 1014. Plaintiff does allege that Defendant accepted the benefits of Jackson's conduct by taking "a portion of commission proceeds derived from any representation of a consumer by its" real estate agents and by taking "separate and exclusive" ownership of all brokerage relationships and listings generated by its real estate agents. (Doc. 1 at 7-8). Further, she argues that Defendant's business structure is "set up to remain willfully ignorant of the conduct of one's contractor to avoid liability" (Doc. 16 at 15). She bases this willful ignorance on Defendant's knowledge that many other associates similarly situated to Jackson have generated leads using methods that violated the TCPA which are "materially identical" to Jackson's methods.
A key to Ms. Soale defeating eXp's motion to dismiss was eXp's listing Joshua Jackson Realty Group as an agent, so if you are in this situation look for that and if it exists make sure it makes it into the complaint. Look for the agent bragging on social media about generating business via cold calling. If it exists make sure it makes it into the complaint. The case is Soale v. eXp Realty LLC, No. CV-25-00773-PHX-GMS, 2026 LX 193329 (D. Ariz. Mar. 9, 2026).
In some situations the defendant might come to with a jurisdiction argument as in Bukowiec v. Anytime Fitness Franchisor LLC, Civil Action No. 25-15473 (SDW) (MAH), 2026 LX 172589 (D.N.J. Mar. 27, 2026). The court distinguished this case from others where franchisors exercised actual control over franchisee marketing. Here, AF Franchisor's declaration established that franchisees make independent marketing decisions within brand guidelines, the specific TCPA violations were not directed by the franchisor, and franchisees are contractually required to comply with all laws. Plaintiff failed to provide competent evidence rebutting these facts and did not request jurisdictional discovery. The court emphasized that a typical franchisor-franchisee relationship lacks the strong nexus required for specific jurisdiction.
If you get hit with Bukowiec, work to distinguish it. What's different between Bukowiec and the typical reality agent case? In Bukowiec the messages were from "Anytime Fitness Elmwood Park". In Soale it was "Josh Jackson at eXp Realty". This is going to be the heart of the argument in many cases. Real estate agents typically market themselves as representatives of the master franchise name. Document it and pound it.
Got a Case Like This?
If you’ve encountered similar issues with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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