The news just keeps getting worse and worse for brokerage giant Realogy.

The company–which is the parent for Caldwell Banker agents, as well as others–is embroiled in a massive TCPA class action alleging its affiliated agents made illegal robocalls to pitch their services.

As we reported last month, the company suffered a MASSIVE certification setback–the Court certified the following classes:

The class certified are these:

(1) A “National Do Not Call Registry Nationwide” (NDNC) class under Rule 23(b)(2) and (b)(3) consisting of “[a]ll persons in the United States who received two or more calls made by a [Defendant]-affiliated Agent using a Mojo, PhoneBurner, and/or Storm dialer in any 12 month period on a residential landline or cell phone number that appeared on the National Do Not Call Registry for at least 31 days for the time period beginning June 11, 2015, to present;

(2) A “National Internal Do Not Call” (Internal DNC) class under Rule 23(b)(2) consisting of “[a]ll persons in the United States who received, in any 12-month period, two or more calls promoting [Defendant’s] services and made by a [Defendant]-affiliated Agent to their residential landline or cell phone number, for the time period beginning June 11, 2015, to present; and

(3) A “National Artificial or Prerecorded Message” (Prerecorded Message) class under Rule 23(b)(2) and (b)(3) consisting of “[a]ll persons in the United States who received a call on their residential telephone line or cell phone number with an artificial or prerecorded message, as indicated by the following call disposition codes: (1) ‘Drop Message’ (if using the Mojo dialer); (2) ‘ATTENDED_TRANSFER’ (if using the Storm dialer; and (3) ‘VOICEMAIL’ (if using a PhoneBurner dialer) in the call records listed in Appendix A and made by a [Defendant]-affiliated Agent for the time period beginning June 11, 2015, to present.

The classes include over 445,000 unique cell phones–meaning that the Defendant is facing minimum exposure of $222,500,000.00 at trial. Nearly a quarter billion dollars!

Well the news got worse for Realogy this week–it lost its summary judgment bid and it is now headed to trial.

In Bumpas v Realogy Brokerage Group, 2022 WL 1489470 (N.D. Cal. May 11, 2022) the Court held there was just too much conflicting evidence on the issue of control and agency. The parties both introduced copious evidence to support their position. So the issue must now head to the jury.

Given that most of the merits elements needed to prove a TCPA violation are already established by class membership–failsafe anyone?–vicarious liability is really the last substantive defense Realogy has to rely on. Its ability to avoid a quarter billion dollars in potential exposure turns on its ability to convince a jury it is not responsible for calls made by affiliated agents.