A plaintiff’s Telephone Consumer Protection Act (TCPA) class action claims failed in the face of an established business relationship defense, an Illinois federal court has ruled.
In early 2019, Jo Ann Sorsby began using TruGreen lawn care services. During that time, she received calls from TruGreen representatives up to twice a week soliciting her to purchase additional services from the company.
She informed TruGreen that she was not interested in the additional services and in August 2019 canceled her TruGreen lawn services. However, after Sorsby terminated her relationship, she received eight additional calls from TruGreen, despite repeatedly asking for the calls to stop.
Sorsby filed a complaint against TruGreen on behalf of herself and those similarly situated, seeking to represent two classes of plaintiffs: one whose numbers were registered on the National DNC Registry, and a second of those on TruGreen’s internal DNC list.
After limited discovery, TruGreen filed a motion to strike Sorsby’s class allegations. The defendant argued that she would be unable to meet the Federal Rules of Civil Procedure Rule 23 requirements of typicality, commonality and predominance, as she was an atypical and inadequate class representative. U.S. District Court Judge Robert M. Dow Jr. granted the motion.
Sorsby was inadequate and atypical because she was subject to a substantial defense unique to her, as she had an established business relationship (EBR) with the defendant that she allegedly revoked, the court said.
“Plaintiff’s conversation with defendant highlights the ambiguity of determining whether class members successfully revoked their business relationship with defendant,” the court wrote. “[W]hile plaintiff alleges that she successfully terminated her EBR with defendant, TruGreen disputes this. Plaintiff is thus subject to an individual defense that would potentially defeat her claims.
“Because it is ‘predictable that a major focus of the litigation’ would be on determining whether plaintiff and other class members who had a former relationship with defendant successfully terminated their business relationship, plaintiff ‘is not a proper class representative.’”
In the alternative, the court found that Sorsby also failed to meet the requirements for predominance and commonality.
As she and another subset of class members would likely be subject to the EBR defense, “the court will necessarily be required to complete individualized inquiries into each class member’s business relationship with TruGreen,” the court said. “Because there is no single source of information that would demonstrate whether all class members had successfully terminated their business relationship with defendant, plaintiff’s proposed revocation determinations would require individualized inquiries and thus are not suitable for class treatment in this case.”
Even with the benefit of initial discovery, Sorsby could not advance a theory of generalized proof that could establish proper revocation of EBR for all applicable class members.
The court was not persuaded that Sorsby’s proposed method to solve the problem—by checking TruGreen’s internal DNC forms—would work as it only demonstrated the “difficult process” that would be necessary to determine EBR dates. The DNC form for Sorsby, for example, indicated a date months after the alleged date she requested that the defendant not contact her—potentially invalidating her own claim.
Judge Dow granted TruGreen’s motion to strike the class allegations under Rule 23. Given that the motion was brought under Rule 23, and not 12(f), the Court allowed the parties to take limited discovery on the issue of class certification. The Court determined that the Plaintiff potentially being subject to an EBR defense made her an atypical member of the class, and struck the class allegations.
To read the memorandum opinion and order in Sorsby v. TruGreen LP, click here.
Why it matters: The decision demonstrates the meaningful impact an EBR defense can have in a TCPA lawsuit, particularly in a class action, where individualized inquiries may be necessary to establish when the relationship ended.