Nevada Court Certifies TCPA Ringless Voicemail Class

A Nevada federal court has certified a TCPA class action against Las Vegas realtor Britney Gaitan for using ringless voicemail drops to contact homeowners with expired property listings without their consent. The case, Garvey v. Gaitan, involves approximately 983 to 1,983 calls made on May 3, 2023 and May 16, 2023, exposing Gaitan to potential damages approaching $3 million.

Case Background

Gaitan used an online third-party service to compile homeowner contact information from withdrawn or expired MLS listings into a single dataset. She then exported this list into the sales platform Go HighLevel and used it to send prerecorded messages as ringless voicemail drops to phone numbers in the dataset. Critically, Gaitan had no documentation showing she received consent from plaintiff Garvey or any putative class members to contact them with prerecorded messages.

Certified Class Definition

The court certified a class encompassing all persons throughout the United States to whom Gaitan placed or caused to be placed a call directed to a cellular telephone number using an artificial or prerecorded voice on May 3, 2023 and/or May 16, 2023. The class includes numbers assigned to cellular telephone service when called and not ported, or if ported, had not been ported within 15 days of the call.

Legal Significance

The court confirmed that ringless voicemails constitute “calls” under the TCPA, citing the FCC’s 2022 declaratory ruling. The violation occurs when the prerecorded message is delivered, regardless of whether the recipient listens to the voicemail. The court rejected Gaitan’s defense that listing a property on MLS equals consent to receive prerecorded calls and dismissed her “disproportionate damages” argument under the Ninth Circuit’s Bateman framework.

Appointed Class Counsel

The court appointed The Weitz Firm, LLC, The Law Office of Chris R. Miltenberger, PLLC, and Craig K. Perry & Associates as class counsel.