In Stevens-Bratton v. TruGreen, Inc., No. 15-cv-2472, 2016 U.S. Dist. LEXIS 3365 (W.D. Tenn. Jan. 12, 2016), the District Court for the Western District of Tennessee denied class certification of a putative class action against TruGreen, Inc. (“TruGreen”) for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. 227 (“TCPA”), and ordered that the plaintiff’s claim was subject to mandatory individual arbitration.
In May of 2013, the plaintiff, Kasie Stevens-Bowen, signed a contract for the services of TruGreen, a national lawn care service provider. The agreement provided, amongst other provisions, that TruGreen retained the right to contact the plaintiff regarding “current and possible future services,” and that any dispute between plaintiff and TruGreen would be subject to mandatory arbitration. The agreement also contained a class action waiver prohibiting the plaintiff from prosecuting or joining in any class action. After the plaintiff’s contract expired, TruGreen contacted her several times on her cellular telephone, seeking to contract for new services. The plaintiff, whose telephone number was already on the national do-not-call registry, instructed TruGreen not to call her again, yet allegedly continued to receive calls.
The plaintiff filed suit against TruGreen, alleging that TruGreen’s calls violated the TCPA because (1) TruGreen used an automatic telephone dialing system to contact the plaintiff on her cell phone; (2) the plaintiff’s telephone number was on the national do not call list; and (3) the plaintiff made specific requests to TruGreen not to receive additional calls, which TruGreen allegedly did not honor. The plaintiff sought to represent a class of similarly situated individuals.
TruGreen successfully moved to compel arbitration of the plaintiff’s individual claim on the grounds that the arbitration agreement (and class action waiver) survived the termination of the agreement between the parties. The plaintiff argued that her consent to receive calls about “current and possible future services” was limited to future services that she could have, but was not yet receiving, under the contract, and that the provision did not confer consent to receive additional calls after the termination of the agreement. The plaintiff likewise argued that the arbitration provision and class action waiver did not apply because the conduct which gave rise to the action all post-dated the expiration of the agreement.
The district court rejected the plaintiff’s arguments. The court noted that the plaintiff’s consent to receive calls about “future” services was reasonably construed to include calls after the expiration of the agreement. Similarly, the district court noted that there is a presumption in favor arbitration even after the termination of a contract “unless negated expressly or by clear implication,” of the parties. Because the contract did not contain clearly indicate that its provisions were to expire with the agreement, the court concluded that both the class action waiver and arbitration agreement were enforceable, denied the plaintiff’s motion for class certification, and dismissed the claims.
