[author: Eric Troutman]
So just a couple months ago Queenie and I were in D.C. for the big DNC.com TCPA compliance summit.
Was a great time. Very memorable and impactful.
One of the most interesting panels at the show was one discussing the fine line between telephone solicitations and offers to buy.
The Courts have been pretty consistent that a pure offer to buy a property is not a solicitation, but a an offer to buy tied to a hidden service for which the consumer is charged is a solcitation.
This matters because folks really like to cold call property owners in an effort to buy their properties. But folks also really like to cold call FSPOs and expired listings in an effort to list their properties– which is very different.
Well in Cofey v. Fast Easy Offer, 2025 WL 1591302 (D. Az. June 5, 2025) the Court held calls asking “Have you given up on selling your…property?” were not telephone solicitations because they did not offer to sell or rent anything to the call recipient.
The court thoroughly analyzed the facts and law and determined the calls only related to future selling activity by the Plaintiff, not future buying activity. The fact that the caller would profit from a sale of the Plaintiff’s property was of no moment. The caller wanted to buy the property– not sell something to the Plaintiff.
As the Court summed up its analysis:
The Court is sympathetic to Plaintiff’s skepticism regarding this buying/selling distinction, especially where the end result is the same: Defendants make money off Plaintiff. It is true that, construing Plaintiff’s factual allegations in the most favorable light, were Plaintiff to agree to use FEO’s services to sell her house, Defendants would ultimately benefit from an “effective fee” deducted from the offer price. In that sense, the calls and texts might constitute “solicitations” in the colloquial sense of the word. But even if, in that hypothetical scenario, Plaintiff did not make as much money as she might have made selling her home without FEO’s services, she would still be making money and not spending a cent on purchasing any goods or services from Defendants. The calls and texts therefore cannot constitute “solicitations” within the plain statutory meaning of the term, and it is this statutory meaning that must carry the day. Ultimately, Plaintiff’s “quarrel is with Congress, which did not define” solicitation “as malleably as [she] would have liked.” Cf. Facebook, 592 U.S. at 409. This Court cannot rewrite what Congress wrote simply to make the outcome fairer to Plaintiff.
Bingo.
Great analysis. Great ruling.
Now Keller Williams was involved here as the likely lead buyer so people may get confused. The Court DID NOT hold a real estate agent can call a property owner to offer to list their property. In that instance the consumer is engaging in “buying” activity– they are “buying” help selling their property. Don’t get it twisted and be careful!
For those in the real estate game eXp Realty’s Privacy, Cybersecurity, & Tech Counsel Anthony Witowski will be speaking at Law Conference of Champions next month! You will NOT want to miss what he has to say! TCPA will be a big topic of conversation– as well data privacy, AI and CIPA.
Chat soon.
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