Antitrust Law Daily Wrap Up, PRIVACY—W.D. Tenn.: Former TruGreen customer’s TCPA claims must be arbitrated, (Jan 14, 2016)

By Greg Hammond, J.D.

A consumer who previously used TruGreen, Inc.’s lawn care service is required to arbitrate her Telephone Consumer Protection Act (TCPA) claims against TruGreen, which arose from calls she received on her cell phone after the termination of her service agreement with TruGreen. The federal district court in Memphis granted TruGreen’s motion to compel arbitration, finding that the arbitration provision survived the termination of the parties’ contract and was not unconscionable (Stevens-Bratton v. TruGreen, Inc., January 12, 2016, Anderson, S.).

Scope of arbitration clause. The court first concluded that the conduct at issue was within the scope of the expired contract’s arbitration clause. The clause stated, “I agree that TruGreen may contact me on that number using an automatic telephone dialing system or prerecorded or artificial voice to discuss my account and lawn care services, including current and possible future services, customer service and billing.” Noting that the agreement allowed TruGreen to call the consumer about “possible future services,” the court determined that the right to contact the former customer accrued or vested under the service agreement. Consequently, the disputed contractual right—arbitration—survived the expiration of the agreement.

Provision not unconscionably broad. The consumer’s contention that the arbitration clause was unconscionably broad and should be stricken, because it pertained to any “claim, dispute or controversy” and was not limited to claims related to the contract or any specific course of conduct, was also rejected. In particular, the consumer failed to offer any evidence that the provision was procedurally unconscionable. Further, because the provision gives both parties the right to arbitrate their claims, each party is responsible for its own costs and attorney fees, and the provision is governed by the rules of the American Arbitration Association, there was nothing “one-sided” or “oppressive” about the arbitration clause that would shock the judgment of a person of common sense. The provision was therefore not substantively unconscionable.

The court consequently granted TruGreen’s motion to compel arbitration and dismissed the TCPA action.

The case is No. 2:15-cv-2472-STA-tmp.

Attorneys: Adam R. Gonnelli (Faruqi & Faruqi, LLP) for Kasie Stevens-Bratton. George T. Lewis, III (Baker Donelson Bearman Caldwell & Berkowitz) for TruGreen, Inc.

Companies: TruGreen, Inc.

Cases: Privacy TennesseeNews