Telephone and Texting Compliance — Wake Up and Smell the Coffey — Offers to Buy Not Solicitations

In 2024, plaintiff Vicki Coffey allegedly received “numerous telephone calls and text messages . . . seeking to solicit Plaintiff to sell her home . . . .”[1] The first, for example, asked, “Have you given up on selling your . . . property?”[2] After allegedly receiving another text and six calls, Ms. Coffey alleged TCPA violations on the basis that the texts and calls were “telephone solicitations” that triggered the statute.

Not so fast, argued the defendants, calls offering to purchase something should not qualify as telephone solicitations under the TCPA. As the court noted, “telephone solicitation” is a term of art that the TCPA’s implementing regulations define as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services . . . .”[3] And whether a call qualifies as a telephone solicitation ultimately turns on its purpose.

Here, “the messages were an offer for Defendants to make a future purchase from Plaintiff.”[4] And contrary to other authority, such as the Ninth Circuit’s Chesbro v. Best Buy Stores decision, the allegations did not indicate an underlying pretext that would result in the plaintiff ultimately purchasing something from the defendants.

Additionally, explained the court, the soliciting message must directly advertise something as opposed to relating to potential advertising that a party may want to conduct in the future:

[E]ven assuming that Defendants intended to ultimately generate business based on the sale of Plaintiff’s home, the messages and calls Plaintiff received relate to future potential advertising. And the fact that Plaintiff was directed to [a] website, which advertises . . . real estate services, is not itself dispositive, as the mere inclusion of a link to a website on which a consumer can purchase a product does not transform the whole communication into a solicitation.[5]

Because the messages did not attempt to convince the plaintiff to purchase something from the defendants, and did not directly advertise something the plaintiff could purchase, the court concluded they were not telephone solicitations within the scope of the statute.

Notably, the plaintiff had already amended her initial complaint. Though courts will often grant leeway at the pleading stage, because the messages could not “as a matter of law, be considered ‘solicitations,’” the court elected to dismiss the plaintiff’s claim with prejudice.

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