Established Business Relationship Defense Dooms Class Allegations

The Northern District of Illinois recently granted a TCPA defendant’s motion to strike class action allegations, reasoning that individual questions of consent and the availability of the established business relationship (“EBR”) defense made the claims unsuitable for class treatment.  The case is Sorsby v. TruGreen L.P., 2023 WL 130505 (N.D. Ill. Jan. 9, 2023).

The plaintiff alleged that, after cancelling her TruGreen lawn-care service and telling TruGreen not to call her, she received numerous calls from TruGreen to a number that was on the National Do-Not-Call Registry and should have been on TruGreen’s internal Do-Not-Call list.  TruGreen moved to strike the class allegations, arguing that plaintiff could not satisfy Rule 23’s requirements of typicality, commonality, and predominance.  The court agreed and struck the class allegations.

The court explained that the TCPA does not prohibit solicitations to customers with whom a business has an EBR.  Although the named plaintiff claimed to have terminated her own EBR, the availability of the EBR defense as to other class members was inherently individualized and not capable of being determined on a classwide basis.

As for Rule 23 typicality and commonality, the court explained that “a class representative may be inadequate and atypical if she is subject to a substantial defense unique to her.”  The court disagreed, noting “that there are no conflicts between class members who have revoked an EBR and those who have not.”  The parties agreed that the EBR defense would be available only to the named plaintiff and a subset of class members.  And that issue was likely to be a large focus of the litigation.  In considering Rule 23 predominance, the court found “no single source of information that would demonstrate whether all class members had successfully terminated their business relationship”—a determination that would therefore “require individualized inquiries” not suitable for class treatment.

In sum, availability of the EBR defense may warrant striking class allegations where the defense is available only to a subset of plaintiffs and there is no single source of information by which a court may identify which members of the class have revoked consent.

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