TCPA Established Business Relationship Defense Defeats Class Allegations

A TCPA defendant’s motion to strike class action allegations was recently granted by a  Northern District of Illinois.  The court held that individual questions of consent and the availability of the established business relationship defense made the claims unsuitable for class treatment.

In the matter of Sorsby v. TruGreen L.P., 2023 WL 130505 (N.D. Ill. Jan. 9, 2023), the plaintiff alleged that she cancelled her TruGreen lawn-care service and asked TruGreen not to call her after she had alleged received numerous phone calls to a number purportedly on the National Do-Not-Call Registry.  The plaintiff further alleged that her phone number should have been on  TruGreen’s internal DNC suppression list.

TruGreen moved to strike the plaintiff allegations.  In doing so, the company argued that the plaintiff could not satisfy class certification requirements because her claims were not “typical” of the claims of the class, did not share commons questions of law or fact, questions or law or fact were not predominate.

The court agreed and struck the class allegations.

The court opined that the TCPA does not prohibit solicitations to customers with whom a business has an established business relationship.  Despite the plaintiff claiming that she had  terminated her established business relationship, the issue of the availability of the established business relationship defense as to other class members was individualized and not capable of being determined on a class wide basis.

Here, the parties agreed that the established business relationship defense would be available only to the named plaintiff and a subset of class members.  Thus, the issue was likely to be a significant focus of the litigation.

In considering class certification requirements, the court held “no single source of information that would demonstrate whether all class members had successfully terminated their business relationship.”  A a determination that would therefore “require individualized inquiries” not suitable for class treatment.

Takeaway:  Availability of the established business relationship defense may result in early disposition of DNC class allegations if the defense is only applicable to a subset of potential class members.

Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP.

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