This insane TCPA ruling on vicarious liability needs appealed real bad

There have been some good telephone consumer protection act rulings lately, so the universe apparently decided to balance it out with some insanity. Take Kelly Usanovic v. Americana, L.L.C., No. 2:23-cv-01289-RFB-EJY, 2025 WL 961657 (D. Nev. Mar. 31, 2025). First some background.

Americana LLC operates using the trade name Berkshire Hathaway Home Services Nevada Properties (“BHSS”). Defendant BHHS operates a full-service real estate company that services consumers in buying/selling properties. Next, I'm quoting from the court opinion - as you read this, for the purpose of Americana's motion to dismiss, the court believed these facts to be true:

Usanovic v. Americana, L.L.C..pdf

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Defendant BHHS trains its real estate agents to place unsolicited calls to consumers who previously listed a property with a different real estate brokerage, were unable to sell their home, and the agent listing expired (known as “expired listings”). CEO Stark and Vice President of Sales Berube regularly give training classes to their real estate agents instructing them to place cold calls to consumers with expired listings. Defendant instructs the real estate agents on how to call (by using one of the dialers Defendant recommends), who to call (by obtaining leads from the vendors Defendant recommends), when to call (for multiple hours every day), and what to say (following Defendant’s scripts). Defendant provides its agents with the “Book of Everything,” which includes expired listing scripts, how to role play these scripts, and even which dialer services to use. On the last page, Defendant provides companies and website addresses for where its agents can purchase numbers to call consumers. Among this list were companies like Landvoice, Mojo, RedX, and Vulcan which were used by the agents who called the Plaintiff in this case. The phone numbers that RedX, Landvoice, Vulcan7, and Mojo provide to real estate agents include numbers on the DNC. Despite this fact, Stark and Berube regularly instruct their real estate agents to generate business using RedX, Landvoice, Vulcan7, and Mojo. Neither the training videos nor the “Book of Everything” contain any mention of the national Do Not Call registry, and that agents should first check whether a phone number is registered with the DNC.

As we look at the rest of the opinion, consider a parallel analogy - imagine a situation if you trained your agents to find unoccupied homes and you provided your agents with a list of people willing to take that list of unoccupied homes and go break into those houses. Consider if you think the legal system would hold you just as accountable for the resulting burglaries as your agents are.

We have the setup - a principle has trained his agents to violate the law and gave his agents the tools they need to break the law, and then the agents went and broke the law:

Plaintiff Usanovic had a property listed for sale using a real estate agent not affiliated with BHHS. Plaintiff’s property listing expired in February of 2023. As soon as it expired, Plaintiff received unsolicited calls to her cell phone from real estate agents soliciting her to relist her property with them. On February 14, 2023, Plaintiff received the following BHHS calls [a bunch of calls] . . . Plaintiff told the agent that her phone number is on the DNC and that she should not be calling her . . . Plaintiff told Jourdain that her phone number is on the DNC and that he should not be calling her. For most of the answered calls, the agent would identify that they are an agent from BHHS and inquire about the status of her expired property and whether she would like to relist it through their services.

Keep in mind that Americana's motion to dismiss argument is just about their own vicarious liability. The parties do not dispute whether the agents violated the TCPA and its implementing regulations. Rather, the parties dispute whether Defendant can be held liable for the agents’ calls.

“[A] defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller.” “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” To establish an agency relationship, Plaintiff must show that BHHS “controlled or had the right to control” the real estate agents — specifically the “manner and means” of the calls conducted. The “essential ingredient” in determining whether an agency relationship exists is “the extent of control exercised by the employer.” Plaintiffs have failed to allege sufficient facts to establish an agency relationship between Defendant and the callers. Defendant provides trainings to agents concerning how to make calls, including where to purchase phone numbers and dialers. Plaintiff has not alleged that the trainings are required or that the real estate agents must use the dialers and vendors that Defendant recommends. Further, Defendant does not direct Plaintiff how many calls to make, nor do the calls occur under the Defendant’s supervision.

I am using the analogy of a house break-in crew to highlight the ridiculousness of the situation. In what area of life other than phone calls can you get a team together for the purpose of breaking the law, equip them to break the law, and financially reward them for breaking the law, and then skate away because you didn't require your agents to break into houses, or demand they use your recommended burglars, direct how many houses to break into, or supervise the breaking into houses?

You would never skate just because as the boss you just assembled the team, trained them, and gave them access to burglars but you didn't make them do the crimes. But in the telemarketing world you see court protect the principles. This court can't hide it.

“Apparent authority arises from the principal’s manifestations to a third party that supplies a reasonable basis for that party to believe that the principal has authorized the alleged agent to do the act in question.” “Apparent authority cannot be established merely by showing that [the agent] claimed authority or purported to exercise it, but must be established by proof of something said or done by the [principal] on which [the third party] reasonably relied.” Such statements can include “direct statements to the third person, directions to the agent to tell something to the third person, or the granting of permission to the agent to perform acts and conduct negotiations under circumstances which create in him a reputation of authority in the area which the agent acts and negotiates.”

Did the court establish this itself when it took as true:

the agent would identify that they are an agent from BHHS and inquire about the status of her expired property and whether she would like to relist it through their services.

The plaintiff could have and should have checked directly with Americana to see if Americana claimed them as agents [this might have been done]:

Plaintiff has failed to allege any statement from Defendant upon which she relied. In fact, she alleges no direct communication with Defendant. Instead, she alleges that the agents identified themselves as calling from BHHS, but this is insufficient to establish apparent authority.

This is how bad courts operate. Clearly, these real estate agents were operating under the knowledge and approval of Americana in placing these illegal calls. A bad court draws the intended conclusion first - I want to protect Americana - and then looks over the facts to see how to do it.

After the illegal calls but before filing the lawsuit, had Usanovic verified with Americana that the calling agents belonged to Americana, is that the difference in Americana's liability?

I didn't pull the underlying briefing or the complaint, but broadly speaking this situation needs to be corrected by the appeals court.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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