Three arguments lodged in the defendant's motion to dismiss this TCPA proposed class action. The plaintiff beat all three. Around here (Miami), we call that a 3-piece and a soda. Or maybe that's just me.
Anyway..
In Owen-Brooks v. Better Homes and Gardens Real Estate, LLC, No. 2:25-cv-15801 (D.N.J. Aug. 21, 2026), the plaintiff alleged that her residential number was registered on the national do not call registry and that she nonetheless started receiving unsolicited real estate marketing texts from the defendants.
The messages came from agents who signed off using the national brokerage brand and arrived from numbers she alleged the defendants owned or operated. She pled one count under 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200, on behalf of a putative class.
The defendants — a national franchisor and the franchisee whose agents sent the texts — moved to dismiss on three separate theories. The Court took each one in turn and denied the motion outright.
First was the "texts aren't calls" argument.
The Court found that when the TCPA was enacted in 1991, the plain meaning of a telephone call was a communication made by telephone, with no distinction drawn between oral and vocal communication. Because there are now many ways to communicate by telephone, the Court agreed with Newell v. Children's Dental Health Associates, LLC, 2026 WL 927378 (E.D. Pa. Apr. 6, 2026), that texting "fits comfortably within the understood meaning of 'call.'" Add purpose — a consumer protection law built to protect privacy — and the Court concluded that Congress was focused on protecting subscribers from telephone solicitations, "not on any one form of such solicitations."
Defendant's second theory was consent. Now consent is an affirmative defense under the TCPA. Any fist year law student could tell you its typically not proper to move to dismiss based on an affirmative defense.
To win on an affirmative defense at the pleading stage, a defendant must show the defense is apparent on the face of the complaint. Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127 (3d Cir. 2018). Here the complaint said flatly that she never gave either defendant express written consent, and that allegation is taken as true. Evidence that lives entirely outside the pleadings does get considered on a motion to dismiss.
Last was the franchisor's argument that it shouldn't be in the case at all. It correctly noted that the mere existence of a franchise relationship does not automatically create agency.
But the allegations went further. The complaint described specific training on how agents market their services, a business model and training protocol under which agents systematically call and text consumers to generate business for the whole system, texts in which agents held themselves out under the parent brand, and commissions flowing up from every closed transaction. Courts in the district have found agency adequately pled where a franchisor supplied manuals and training materials.
The Court also invoked the practical point from Smith v. Vision Solar LLC, 2020 WL 7230975 (E.D. Pa. Dec. 8, 2020): without discovery, it is impossible for plaintiffs to know the nature of the relationship between a purported principal and its agent. Actual authority could be inferred, particularly when its pled that agents identified themselves as the defendant's people.
Nice, tidey 3-piece here.
