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Duane Morris Takeaways: On March 13, 2026, in Garvey, et al. v. Gaitan, No. 23-CV-00920, 2026 U.S. Dist. LEXIS 53447 (D. Nev. Mar. 13, 2026), Judge Andrew Gordon of the U.S. District Court for the District of Nevada certified a Telephone Consumer Protection Act ("TCPA") class action against an individual realtor for violation of the statute's prohibition against consentless prerecorded voice messages. The decision serves as a cautionary tale for companies and their individual agents, particularly those entities engaged in direct-to-consumer marketing, to consult experienced TCPA counsel in connection with their marketing campaigns to limit their potential exposure.
Case Background
In 2023, Britney Gaitan, a realtor based in Las Vegas, used an online third-party service to accumulate the homeowner contact information for home sellers whose online real estate listings were either withdrawn or expired. Gaitan then uploaded that list into a software that allowed her to send a prerecorded ringless voicemail message to the list of the home sellers she created. As a result, on March 3, 2023, and March 16, 2023, Gaitan sent these prerecorded voice messages to everyone on her list, including Wayne Garvey, one of the homeowners. Gaitan had no documentation that she received prior consent before placing these ringless voicemail messages.
Garvey ultimately filed suit against Gaitan alleging that she violated the TCPA's prohibition on consentless prerecorded voice messages codified at 47 U.S.C. § 227(b)(1)(A)(iii). Garvey also sought to maintain the case as a class action and represent the owners of the 983 unique cell phone numbers that were called 1,983 times over the course of the two days. Put differently, Garvey ultimately asked the court to certify a class worth up to $2,974,500 or $1,500 per call.
The Court's Ruling
On March 13, 2026, Chief Judge Andrew Gordon granted Plaintiff's motion and certified a class against Gaitan. Although Gaitan raised arguments in response to many of the necessary elements for a plaintiff to certify a class action, the dispute largely hinged on Rule 23's predominance requirement — i.e., whether a common questions of law or fact predominate over issues affecting only certain individual class members. To that end, Gaitan argued that four individualized issues would predominate.
First, Gaitan asserted that individualized inquiries were required to determine whether any class member actually listened to the voicemail. The problem, however, is that "Gaitan cite[d] no law that states a recipient must listen to the voicemail to suffer an injury under the TCPA." Garvey, 2026 U.S. Dist. LEXIS 53447, at *12. To the contrary, the Federal Communications Commission (the "FCC") only requires that a prerecorded voicemail must be "completed" to implicate the statute, and Garvey submitted such common proof via expert testimony. In short, the court concluded that these completed calls are "a central, common question of the class's TCPA claims that predominates over any individualized issues." Id. at *15.
Second, Gaitan asserted the same argument (i.e., an individualized issue as to whether any class member listened to the call) but repurposed it under the injury-in-fact requirement of Article III of the U.S. Constitution. For the same reason, the court concluded that because Gaitan could not cite "any law that the putative class members need to listen to the prerecorded message to be injured under the TCPA . . . they have Article III standing if Gaitan used a prerecorded voice in her ringless voicemail drops when calling their cell phones, and they need not prove any other harm." Id. at *18. This argument was overruled.
Third, Gaitan asserted that there was individualized inquires as to whether any given class member consented to receive prerecorded voice messages. As the court aptly observed, Gaitan "indicated that she has no documentation showing that she obtained consent from any putative class members." Id. at *19. Gaitan tried to point to the terms of the multiple listing service ("MLS"), which supposedly require a homeowner to provide his or her phone number to create a listing, and argued this action constitutes consent to receive such calls. Although the court was unconvinced, it correctly observed that the consent defense would apply to the entire class and thus "Gaitan has not provided evidence that determining whether some MLS users consented to being contacted about their property is an individualized issue." Id. at *20.
Fourth, Gaitan asserted that individualized inquiries were required to determine whether any individual owner of a telephone number was a "residential telephone line" within the meaning of the TCPA. The primary problem, however, is that residential telephone subscriber status is not an element of a claim under Section 227(b)(1)(A)(iii) unlike other sections of the TCPA. In other words, this argument was wholly inapplicable and "does not defeat class certification." Id. at *21.
As a result, once the realtor's most significant objection to class certification was overruled, it was a near forgone conclusion that a class would be certified and thus the court proceeded to grant Garvey's motion.
Implications For Companies
There are multiple cautionary messages embedded in Gaitan for those engaged in direct-to-consumer marketing. The most salient three takeaways are listed below.
The first (and, most important) lesson of Gaitan is to obtain "express consent" prior to making calls using an artificial or prerecorded voice message. 47 U.S.C. § 227(b)(1)(A). It can be difficult to defend a TCPA class action without a consent defense and Gaitan is no different.
The second lesson is that TCPA liability does not only attach to companies but may also be applied "to any person within the United States" who makes such calls. Id. Here, Britney Gaitan is the sole defendant facing TCPA liability and thus Gaitan's personal assets are likely on the line for any resulting judgment. But that is not the end of the story. Many similar agencies have indemnification agreements with their agents, which require the agency to pay for the liabilities incurred by the agent. To the extent such an agreement exists here, both Gaitan and her agency may have exposure for this TCPA liability.
The third lesson is to ensure that any TCPA defense strategy is prophylactic in nature and crafted in collaboration with defense counsel well versed in this space. In this case, Gaitan raised arguments based on wholly inapplicable portions of the statute or asserted defenses with little chance of success given the facts of the dispute. If Gaitan consulted with experienced defense counsel in advance of the calls, then this situation could have been avoided. But once the calls are made, the best course of action is for a TCPA defendant to contact experienced defense counsel to help navigate any resulting class actions.
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