In Stevens-Bratton v. TruGreen, Inc., 2016 WL 155087, at *2 (W.D.Tenn., 2016), Judge Anderson denied a class certification motion on the basis that the Defendant responded to it with a Petition to Compel Arbitration, finding that the Arbitration Clause was not unconscionable. The unconscionability analysis is not unusual, so much as the procedural posture.
TruGreen is a national lawn care service provider headquartered in Memphis, Tennessee. (Cmplt. para. 3, 12, ECF No. 1.) TruGreen engages in telemarketing to reach potential customers. (Id. para. 13.) Plaintiff alleges that she has received numerous telemarketing calls from TruGreen on her cell phone. (Id. para. 18.) When Plaintiff answered the calls, there was a lengthy pause and a click. Plaintiff had to say “hello” multiple times before a person came on the line, which indicated to her that the call was made using an automatic telephone dialing system (“ATDS”). (Id. para. 19.) The calls were allegedly made on behalf of TruGreen in an attempt to persuade Plaintiff to purchase lawn care services. (Id. para. 20.) Plaintiff requested on several different calls that TruGreen stop calling her. (Id. para. 21.) However, Plaintiff continued to receive calls on her cellular telephone from, or on behalf, of TruGreen. (Id. para. 22.) Plaintiff received these calls despite the fact that she had listed her telephone number on the National Do-Not-Call Registry on November 9, 2013. (Id. para. 24, 25.) Plaintiff contends that TruGreen’s actions are in violation of the TCPA. She alleges that other consumers have received similar TCPA violative calls from TruGreen (Id. para. 29 – 35), and, therefore, the Court should certify a class and appoint her as the class representative. (Mot. to Certify Class, ECF No. 3.) TruGreen has responded with a Motion to Compel Arbitration or, in the Alternative, to Stay Litigation.