Owen-Brooks v. Better Homes and Gardens Real Estate: Franchisor Stays In on a Do Not Call Texting Claim

Background

The plaintiff alleged that her residential number was on the National Do Not Call Registry since 2013. Beginning in March 2025, she received texts from "Marissa from Better Homes and Gardens Real Estate NAGR" and "Barry's assistant with Better Homes and Gardens NAGR," pitching real estate services and discounts. She sued the national franchisor and Native American Group, LLC, a franchisee operating under the brand.

Texts Are Calls Under Section 227(c)(5)

Relying on Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the defendants argued that without deference to the Federal Communications Commission (FCC), "telephone call" cannot include a text. The court disagreed, joining a long list of courts in the Third Circuit and elsewhere that reached the same result through independent statutory analysis. Readers should note the contrary appellate authority: the Seventh Circuit held in Steidinger v. Blackstone Medical Services, No. 25-2398 (7th Cir. July 14, 2026), that texts fall outside Section 227(c)(5). The New Jersey opinion did not discuss Steidinger.

Consent Through a Lead Website Must Wait

The defendants asserted that the plaintiff registered on a USHUD website and agreed that "USHUD Cooperative and its affiliates, and real estate professionals may call/text" her, and that the franchisor was listed as an affiliated brokerage. They attached screenshots.

The court declined to consider them. Consent is an affirmative defense, and dismissal on that basis requires the defense to appear on the face of the complaint. The complaint never referenced the website or any consent agreement, so the screenshots were outside the pleadings. The plaintiff's assertion that she never gave express written consent controlled.

Franchisor Vicarious Liability

The court applied federal common law agency principles, which the Supreme Court recognized in Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). It accepted that a franchise relationship alone does not create agency, but found actual authority plausibly alleged because:

1. The franchisor allegedly provides specific marketing training through its platform;
2. Agents allegedly text consumers under that business model to generate profits for the entire system;
3. The texts identified the senders as being with Better Homes and Gardens; and
4. The franchisor allegedly profits from resulting transactions.

Because agency was adequately pleaded, the court did not reach veil piercing.

Practical Implications

Franchisors that provide marketing training and benefit from franchisee transactions should expect vicarious liability claims to survive the pleadings in this district. Defendants relying on lead website consent should recognize that those records usually become relevant only at summary judgment. Brands should audit franchisee texting practices, Do Not Call scrubbing, and how agents identify themselves.

Read the District of New Jersey's opinion in Owen-Brooks v. Better Homes and Gardens Real Estate.