IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JO ANN SORSBY, 

 Plaintiff, 

 v. 

TRUGREEN LIMITED PARTNERSHIP, 

Defendant. 

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Case No. 20-cv-2601 

Judge Robert M. Dow, Jr. 

 

MEMORANDUM OPINION AND ORDER 

Plaintiff Jo Ann Sorsby (“Sorsby” or “Plaintiff”) initiated this putative class action 

against Defendant TruGreen Limited Partnership (“TruGreen LP” or “Defendant”), TruGreen 

Inc., TruGreen Companies LLC, and TruGreen Holding Corporation on April 29, 2020. [1.] 

After this Court dismissed Defendants TruGreen, Inc., TruGreen LLC, and TruGreen Holding 

Corporation [41], Plaintiff had two remaining claims against TruGreen LP, alleging that it 

violated (1) violated 47 U.S.C. § 227(c)(5) by calling her and others with their phone numbers on 

the National Do-Not-Call Registry and (2) violated 47 C.F.R. § 64.1200(d)(3) by calling her and 

others with their phone numbers on Defendant’s internal Do-Not-Call list [1, at ¶¶ 62–73]. On 

January 25, 2021, Defendant filed its first motion to strike class allegations. [45.] In responding 

to Defendant’s motion, Plaintiff requested class-wide discovery to demonstrate that her proposed 

classes would meet Rule 23 requirements. [62, 66.] The Court ordered limited discovery to give 

the parties sufficient information to response to Defendant’s motion and referred the matter to 

Magistrate Judge Weisman. [70.] Before the Court is Defendant TruGreen LP’s renewed 

motion to strike class allegations. [93.] For the reasons stated below, Defendant’s motion to 

strike class allegations [93] is granted. 

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I. Background 

A. Factual Background 

As the Court has ruled previously on motions in this case, the facts are familiar. Plaintif f 

registered her residential landline to the National Do-Not-Call list on July 3, 2003. [1, at ¶ 34]. 

In early 2019, she began using TruGreen lawn care services, provided by Defendant TruGreen 

LP. [Id., at ¶¶ 9, 35.] During that time, she received calls from TruGreen representatives up to 

twice a week soliciting her to purchase additional services from the company. [Id., at ¶ 35.] She 

informed TruGreen that she was not interested in receiving these extra services and in August of 

2019, she cancelled her TruGreen lawn services. [Id.] In response to Plaintiff cancelling her 

service, Defendant issued her a refund. [Id., at ¶¶ 35–36.] However, after Plaintiff terminated 

her relationship with Defendant, from August 2019 to March 2020, she received eight calls from 

Defendant. [Id., at ¶¶ 36–38.] Plaintiff told Defendant to stop calling her on September 10, 

2019, October 21, 2019, January 22, 2020, and February 18, 2020. [Id., at ¶ 39.] Plaintiff’s 

complaint alleges that other former customers and non-customers similarly received unwanted 

calls from Defendant. [Id., at ¶¶ 42–43.] 

Plaintiff brought this complaint against Defendant on behalf of herself and those similarly 

situated, alleging that Defendant violated (1) 47 U.S.C. § 227(c)(5) by calling her and others 

despite their numbers being on the National Do-Not-Call Registry and (2) 47 C.F.R. 

§ 64.1200(d)(3) by calling her and others she despite their numbers being on the Defendant’s 

internal Do-Not-Call list. [1, at ¶¶ 62–73.] Plaintiff seeks to represent two classes. [Id., at ¶¶ 

46–51.] First, she seeks to represent a nationwide class of those on the Do-Not-Call Registry 

(“Nationwide DNC Registry Class”), including: 

All natural persons in the United States who, from April 29, 2016 to the 

commencement of this litigation, received more than one telephone solicitation 

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from TruGreen in a 12-month period on their residential landline or cellular 

telephone line telemarketing TruGreen’s products or service more than 31 days 

after registering their telephone number with the National Do-Not-Call Registry. 

[Id., at ¶ 46.] Next, she seeks to represent a nationwide class of those on TruGreen’s internal 

Do-Not-Call List (“Internal DNC List Class”), including: 

All natural persons in the United States who, from April 29, 2016, to the 

commencement of this litigation, received one or more telephone solicitation on 

their residential landline or cellular telephone line telemarketing TruGreen’s 

products or service after registering their telephone number with TruGreen’s 

Internal Do-Not-Call List. 

[Id., at ¶ 49.] Plaintiff seeks statutory damages and an injunction. [Id., at 21–22.] 

 

B. Procedural Background 

On June 30, 2020, Defendants filed a to dismiss and a motion for protective order staying 

discovery pending further orders of the court. [22, 25.] On December 23, 2020, the Court 

denied in part and granted in part Defendant’s motion to dismiss, dismissing various TruGreen 

corporate entities and leaving only Defendant TruGreen LP as the remaining defendant. [41.] 

Defendant then filed its first motion to strike class allegations. [45.] Defendant argued 

that Plaintiff would be unable to meet Rule 23 requirements of typicality, commonality, and 

predominance. [Id.] The parties disagreed about the need for discovery prior to the Court ruling 

on Defendant’s motion. [48.] The Court ordered parties to complete their mandatory initial 

discovery disclosures and struck Defendant’s motions. [57.] Among those disclosures included 

transcripts of telephone calls between Plaintiff and Defendant. [62.] After the parties had 

completed those disclosures [62], the parties still disagreed on the need for additional discovery 

to resolve Defendant’s renewed motion to strike class allegations. [62, 66–69.] 

While the Court denied complete classwide discovery, as Plaintiff requested, it did allow 

for limited discovery “proportional to the needs of the case.” [70, at 1.] The Court explicitly 

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noted that it would be helpful for the Plaintiff to distinguish cases in this district, Cholly v. 

Uptain Grp., Inc., and Wolfkiel v. Intersections Ins. Servs. Inc., that held that similarly situated 

plaintiffs with TCPA claims did not meet Rule 23 requirements. [Id., at 2.] 

The parties exchanged various documents, including accounts of twenty-five random 

former customers, call transcripts, and internal training materials. [89; 94-1 to 94-5; 102-1 to 

102-4.] Once the parties had agreed that they had the necessary discovery to resolve a 

subsequent motion to strike class allegations, Defendant filed a renewed motion to strike class 

allegations, which the Court now resolves. [93.] 

II. Legal Standard 

Consistent with Rule 23(c)(1)(A), the Court must determine “[a]t an early practicable 

time after a person sues or is sued as a class representative * * * whether to certify the action as a 

class.” FED. R. CIV. P. 23(c)(1)(A). Courts within this district have held that motion to strike 

class allegations is “an appropriate device to determine whether the case will proceed as a class 

action.” Wright v. Fam. Dollar, Inc., 2010 WL 4962838, at *1 (N.D. Ill. Nov. 30, 2010); see 

also Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 294 (N.D. Ill. Mar. 17, 2014) (citing 

cases within this district that evaluate motions to strike under Rule 23). “When a plaintiff’s class 

allegations are facially and inherently deficient,” the court should grant a motion to strike, as 

class certification is inappropriate. See Garvey v. Am. Bankers Ins. Co. of Fla., 2019 WL 

2076288, at *1 (N.D. Ill. May 10, 2019) (citing Buonomo, 301 F.R.D. at 295) (cleaned up); see 

also Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (noting that “a court may 

deny class certification even before the plaintiff files a motion requesting certification”). While 

courts within this district have varied on which party bears the burden of demonstrating such 

allegations, see Jones v. BRG Sports, Inc., 2019 WL 3554374, at *3 (N.D. Ill. Aug. 1, 2019), as 

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the parties acknowledge, the defendant bears the burden of persuasion, [103, at 3–4]. 

Because motions to strike class allegations are evaluated under Rule 23, the plaintiff must 

meet Rule 23 requirements. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th 

Cir. 2012). The plaintiff must first meet the four Rule 23(a) requirements for class certification: 

numerosity, commonality, typicality, and adequacy. FED.R.CIV. P. 23(a); Wal-Mart Stores, Inc. 

v. Dukes, 564 U.S. 338, 349 (2011). After the plaintiff has passed the initial Rule 23(a) 

threshold, the plaintiff must additionally satisfy one of the conditions of Rule 23(b). FED.R.CIV.

P. 23(b); Bell v. PNC Bank, Nat'l Ass'n, 800 F.3d 360, 373–74 (7th Cir. 2015). For classes 

seeking to be certified under Rule 23(b)(2), the plaintiff must additionally demonstrate 

predominance and superiority. FED.R.CIV. P. 23(b)(2); Messner, 669 F.3d at 811. 

III. Analysis 

Defendant argues that because certain key factual allegations are unique to Plaintif f, she 

is an atypical and inadequate class representative. [94, at 13; 109, at 7–9.] The Court agrees. 

Based on the pleadings and limited discovery necessary to resolve this motion, Plaintif f’s class 

allegations are “facially and inherently deficient” because Plaintiff is an atypical and inadequate 

class representative. Garvey, 2019 WL 2076288, at *1. In the alternative, Plaintiff also fails to 

meet the predominance and commonality requirements. Id.

A. The Telephone Consumer Protection Act (“TCPA”) 

The Court begins this discussion with some background on the Telephone Consumer 

Protection Act (“TCPA”). Among other things, the TCPA provides to consumers who have 

placed their number on the National Do-Not-Call Registry a private right of action against 

telemarketers that make unsolicited calls to them. 47 U.S.C. § 227(c)(5); 47 C.F.R. 

§ 64.1200(c)(2), (f). A consumer can sue the entity calling her if she “has received more than 

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one telephone call within any 12-month period” from the same entity. 47 U.S.C. § 227(c)(5). 

Additionally, companies must maintain internal do-not-call lists and cease calling individuals on 

this list within a reasonable timeframe which may not exceed 30 days. 47 C.F.R. 

§ 64.1200(d)(3), (5), (6). 

The TCPA does not prohibit solicitations if a consumer consented to receive calls, 

including when a person has an established business relationship (“EBR”) with the entity calling. 

See 47 C.F.R. § 64.1200(a)(2)(iv), (f)(5). An “established business relationship” is defined as “a 

prior or existing relationship formed by a voluntary two-way communication between a person 

or entity and a residential subscriber with or without an exchange of consideration, on the basis 

of the subscriber's purchase or transaction with the entity within the eighteen (18) months 

immediately preceding the date of the telephone call * * * which relationship has not been 

previously terminated by either party.” 47 C.F.R. § 64.1200(f)(5); see also Rules and 

Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 FR 

44144-01. A consumer’s “seller-specific do-not-call request * * * terminates an established 

business relationship for purposes of telemarketing and telephone solicitation even if the 

subscriber continues to do business with the seller.” 47 C.F.R. § 64.1200(f)(5)(i). 

B. Typicality and Adequacy 

Because the typicality and adequacy inquiries merge in the parties’ arguments and in 

caselaw, the Court considers them together here. See CE Design Ltd. v. King Architectural 

Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011) (citing FED.R.CIV. P. 23(a)(4)) (noting that “in 

many cases * * * the requirement of typicality merges with the further requirement that the class 

representative ‘will fairly and adequately protect the interests of the class’”). 

To comply with Rule 23(a), the movant must show that “the claims or defenses of the 

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representative parties are typical of the claims or defenses of the class”—i.e., typicality—and 

that “the representative parties will fairly and adequately protect the interests of the class”—i.e., 

adequacy of representation. FED.R.CIV. P. 23(a)(3), (4). A plaintiff’s claim is typical if it arises 

from the same event, practice, or course of conduct that gives rise to the claims of other class 

members and is based on the same legal theory. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 

(7th Cir. 2006). “Although the typicality requirement may be satisfied even if there are f actual 

distinctions between the claims of the named plaintiffs and those of other class members, the 

requirement primarily directs the district court to focus on whether the named representatives’ 

claims have the same essential characteristics as the claims of the class at large.” Muro v. Target 

Corp., 580 F.3d 485, 492 (7th Cir. 2009) (citation omitted and cleaned up). To satisfy the 

adequacy requirement, a named plaintiff, among other things, must be a member of the putative 

class and have the same interest and injury as other members. Conrad v. Boiron, Inc., 869 F.3d 

536, 539 (7th Cir. 2017). In addition, the plaintiff must be able to “keep the interests of the 

entire class at the forefront.” Id.

However, a class representative may be inadequate and atypical if she is subject to a 

substantial defense unique to her. See CE Design, 637 F.3d at 726 (citation omitted) (“The 

presence of even an arguable defense peculiar to the named plaintiff or a small subset of the 

plaintiff class may destroy the required typicality of the class as well as bring into question the 

adequacy of the named plaintiff’s representation.”); Randall v. Rolls-Royce Corp., 637 F.3d 818, 

824 (7th Cir. 2011) (“[N]amed plaintiffs who are subject to a defense that would not defeat 

unnamed class members are not adequate class representatives, and adequacy of representation is 

one of the requirements for class certification.”); Koos v. First Nat. Bank of Peoria, 496 F.2d 

1162, 1164 (7th Cir. 1974) (“Where it is predictable that a major focus of the litigation will be on 

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an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is 

not a proper class representative.”). 

At the outset, Plaintiff argues that Defendant’s objections on adequacy and typicality 

grounds are premature and more suited to a motion for class certification. [103, at 12.] The 

Court disagrees. As noted above, the Court may determine “whether to certify the action as a 

class action” at “an early practicable time after a person sues.” FED.R.CIV. P. 23(c)(1)(A); see 

also Kasalo, 656 F.3d at 563. If Plaintiff’s class allegations are “facially and inherently deficient 

* * * a motion to strike class allegations can be an appropriate device to determine whether the 

case will proceed as a class action.” Garvey, 2019 WL 2076288, at *1 (cleaned up and citation 

omitted). The Court need not wait for full class discovery to do so. See Pruitt v. Pers. Staffing 

Grp., LLC, 2020 WL 3050330, at *4 (N.D. Ill. June 8, 2020) (“With the relevant discovery 

concluded, it is practicable, not premature, to decide [the named plaintiffs’ adequacy as class 

representatives].”). Further, as Defendant points out, the Court flagged its concerns regarding 

the typicality and adequacy requirements in its July 23, 2021 order. [70, at 3 n.2.] Plaintif f had 

an opportunity to request the necessary discovery to resolve these issues and signaled that she 

has the necessary facts to do so. [84, at 3; 107, at 4–5.] On the only issues before the Court, the 

parties have developed a record sufficient for the Court to rule on the motion to strike class 

allegations. Plaintiff has not suggested what additional facts she would like to develop to better 

answer this inquiry. See Alqaq v. CitiMortgage, Inc., 2014 WL 1689685, at *5 (N.D. Ill. Apr. 

29, 2014) (“Plaintiff has not suggested what facts to be learned in discovery would be useful in 

making such class determination issues. The grounds on which denial of class certification will 

be based do not require further factual discovery.”). 

Next, Plaintiff argues that there are no conflicts between class members who have 

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revoked an EBR and those who have not, and Defendant fails to point to any applicable authority 

that states as much. [103, at 13.] Not so. Defendant notes applicable authority regarding the 

import of typicality in a class representative. [109, at 7–8.] Indeed, Rule 23’s typicality 

requirement is important for a variety of reasons. See generally CE Design, 637 F.3d at 724. As 

to the substantive conflict between those who have revoked an EBR and those who have not, the 

Court disagrees, as it previously indicated in its July 23, 2021 order. [70, at 3.] The parties 

agree that Plaintiff and a small subset within both her proposed Nationwide DNC Registry and 

Internal DNC List Classes would likely be subject to the EBR defense. [1, at ¶ 5; 94, at 44; 103, 

at 6.] Plaintiff even highlighted this issue in her initial complaint. [1, at ¶ 5.] Further, as the 

Court observed in its July 23, 2021 order—and Plaintiff failed to rebut in her briefing—

Plaintiff’s conversation with Defendant highlights the ambiguity of determining whether class 

members successfully revoked their business relationship with Defendant. [70, at 3 n.2.] 

Indeed, Defendant pointedly notes that Plaintiff’s Internal DNC List Class may f ail f or lack of 

typicality and adequacy of representation because under one of Plaintiff’s theories, she cannot 

state a claim. [94, at 14–15.] At bottom, while Plaintiff alleges that she successfully terminated 

her EBR with Defendant, TruGreen disputes this. Plaintiff is thus subject to an individual 

defense that would potentially defeat her claims. CE Design, 637 F.3d at 726. Because it is 

“predictable that a major focus of the litigation” would be on determining whether Plaintif f and 

other class members who had a former relationship with Defendant successfully terminated their 

business relationship, Plaintiff “is not a proper class representative.” Koos, 496 F.2d at 1164. 

For these reasons, the Court holds that “plaintiff's class allegations are facially and 

inherently deficient,” as Plaintiff is an atypical and inadequate class representative. Garvey, 

2019 WL 2076288, at *1. 

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C. Predominance and Commonality 

In the alternative, the Court concludes that Plaintiff’s class allegations are “facially and 

inherently deficient” because Plaintiff cannot show predominance. Garvey, 2019 WL 2076288, 

at *1. Because the inquiries of commonality and predominance overlap, the Court treats both 

together in its analysis. See, e.g., Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 622–23 (1997). 

“Rule 23(b)(3) permits class certification only if the questions of law or fact common to 

class members ‘predominate’ over questions that are individual to members of the class.” 

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 814 (7th Cir. 2012). To establish 

commonality, Plaintiff must do more than merely raise “common questions—even in droves.” 

Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotations omitted). Rather, 

Plaintiff must show that a class-wide proceeding will “generate common answers apt to drive the 

resolution of the litigation.” Id. (emphasis in original). While similar to commonality, the 

predominance inquiry is “far more demanding.” Amchem, 521 U.S. at 624. Predominance tests 

whether a proposed class is “sufficiently cohesive” to warrant adjudication as a class and “calls 

upon courts to give careful scrutiny to the relation between common and individual questions in 

a case.” Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 29 F.4th 839, 843 (7th Cir. 2022). “An 

individual question is one where members of a proposed class will need to present evidence that 

varies from member to member; a common question is one where the same evidence will suffice 

for each member to make a prima facie showing or the issue is susceptible to generalized, classwide proof.” Id. at 843–44. “[I]t is not the final merits of the permission inquiry that matter f or 

Rule 23(b)(3) purposes; it is the method of determining the answer and not the answer itself that 

drives the predominance consideration.” Id. at 845. 

Other courts within this district have found that TCPA classes fail to satisfy the 

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predominance requirement because “determin[ing] whether each potential class member did in 

fact revoke his or her prior consent at the pertinent time” would force the court “to conduct classmember-specific inquiries for each individual.” Wolfkiel v. Intersections Ins. Sers. Inc., 303 

F.R.D. 287, 293 (N.D. Ill. 2014); see also Jamison v. First Credit Servs., Inc., 2013 WL 

3872171, at *5 (N.D. Ill. July 29, 2013) (“[C]ourts have reached different opinions in TCPA 

cases regarding whether issues of individualized consent predominate so as to prevent class 

certification.”) (citation omitted). Courts in the district have found that individualized issues do 

not predominate where information regarding consent can be ascertained from a single source. 

Compare Craftwood Lumber Co., v. Essendant, Inc., 2020 WL 3000255, at *3–5 (N.D. Ill. June 

4, 2020) (finding that individualized questions about consent precluded predominance because 

there was no single source of telephone numbers that did not consent to telemarketing calls); 

with Wolfkiel v. Intersections Ins. Servs. Inc., 303 F.R.D. 287, 294 (N.D. Ill. 2014) (finding that 

individualized questions did not preclude predominance because all nonconsenting fax recipients 

could be found on a single “leads” list); and Hinman v. M & M Rental Ctr., Inc., 545 F.Supp.2d 

802, 806–07 (N.D. Ill. 2008) (finding that individualized questions did not preclude 

predominance because fax broadcasts were sent en masse on a singular “leads” list obtained from 

a single source). 

Defendant argues that given that Plaintiff and another subset of class members will likely 

be subject to the EBR defense, the Court will necessarily be required to complete individualized 

inquiries into each class member’s business relationship with TruGreen. [94, at 6–8.] The Court 

agrees. Because there is no single source of information that would demonstrate whether all 

class members had successfully terminated their business relationship with Defendant, Plaintiff’s 

proposed revocation determinations would require individualized inquiries and thus are not 

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suitable for classwide treatment in this case. 

At the outset, the Court addresses unresolved issues from its July 23, 2021 order that the 

parties address in briefing. [70.] In its order, the Court asked the parties to address whether the 

Court should follow Judge Gettleman’s and Judge Zagel’s conclusions in Cholly v. Uptain Grp., 

Inc., and Wolfkiel v. Intersections Ins. Servs. Inc., or Judge Wood’s conclusions in Chicago Car 

Care Inc. v. A.R.R. Enterprises, Inc. [70, at 2.] Specifically, the Court advised Plaintiff to 

address Cholly and Wolfkiel to demonstrate “that there are efficient and appropriate ways to 

identify a plausible class.” [70, at 2.] In response, Plaintiff highlights Chicago Care Care as 

instructive because it held that “[o]n the face of the pleadings * * * there is no reason to conclude 

that complex individualized inquiries are needed.” [104, at 5–6]; Chicago Car Care, 2021 WL 

1172262, at *6. Plaintiff distinguishes Chicago Car Care as relying on the pleadings alone, 

rather than “outside evidence” like in Cholly and Wolfkiel.1 [103, at 4–5.] 

The Court finds Plaintiff’s attempt to distinguish Chicago Car Care unpersuasive and 

agrees with the courts within this district that have similarly found that plaintiffs with TCPA 

claims failed to demonstrate predominance. First, the Court rejects any notion that Def endant 

improperly uses evidence outside of the complaint. As noted by the Defendant [109, at 3–4], 

Plaintiff specifically requested discovery to properly brief this motion [48, at 4; 70, at 2–3]. The 

Court thereafter referred this case to Magistrate Judge Weisman to determine the scope of 

discovery that was “proportional to the needs of this case.” [70, at 1.] Only after Plaintiff agreed 

that she had sufficient discovery to complete her brief did the Court hear this motion. [84, at 3; 

107, at 4–5.] Next, Plaintiff’s argument that Cholly and Wolfkiel are distinguishable because 

1 Plaintiff argues that because the absence of an EBR is not within her class definition, the issue of EBR 

will not predominate the adjudication of the class. [103, at 7.] Not so. Plaintiff concedes that her class 

will necessarily sweep in present or former TruGreen customers because of its broad terms. [103, at 13.] 

Further, Plaintiff acknowledges that EBR is a valid defense to liability under 47 U.S.C. § 227(c)(5). [1, at 

¶ 21.] 

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they rely only on the pleadings is not entirely correct. Cholly does not only rely on the 

pleadings. As the Court did in this case, Judge Gettleman allowed limited discovery for the 

purpose of deciding Defendant’s motion to strike class allegations. Cholly v. Uptain Group, Inc., 

2015 WL 9315557, at *3 (N.D. Ill. Dec. 22, 2015); Cholly, 2017 WL 449176, at *3–4. Finally, 

putting aside this factual error, as Defendant correctly notes [109, at 5], given the procedural 

posture of this case, the Court may probe beyond the pleadings to determine “the appropriateness 

of class certification.” See Lee v. Children’s Place Retail Stores, Inc., 2014 WL 5100608, at *2 

(N.D. Ill. Oct. 8, 2014); but see Jones, 2019 WL 3554374, at *4. Indeed, the Court and other 

courts in this district have done the same. See Pruitt, 2020 WL 3050330, at *4; Cholly, 2017 

WL 449176, at *3–4. 

Beyond the cases cited above, the Court refocuses on the applicable standard: whether the 

Court can identify class members who properly revoked their EBR using “generalized, classwide proof.”2 Gorss, 29 F.4th at 844. Even with the benefit of initial discovery, Plaintiff cannot 

advance a theory of generalized proof that could establish proper revocation of EBR for all 

applicable class members. As such, Plaintiff’s proposed classes fail on predominance grounds. 

Plaintiff argues that there are various methods to determine whether a former TruGreen 

customer properly revoked their EBR and that “it would be a mechanical process to determine 

[revocation of EBR] dates based on documents that TruGreen appears to maintain.” [103, at 10–

13.] But Plaintiff’s proposed method presents multiple problems. 

First, Plaintiff’s argument that Defendant’s internal Do-Not-Contact forms can be the 

2 Plaintiff argues that Defendant must show that a “significant percentage” of Plaintiff’s proposed class is 

subject to the EBR defense, citing various district court opinions utilizing the “significant percentage” 

standard. [103, at 6–7.] As the Defendant points out [109, at 9–10], the Seventh Circuit has held that the 

predominance inquiry does not require that the defendant demonstrate that a “significant percentage” of 

class members would fall into an affirmative defense; rather, “[t]he question for class certification 

purposes is whether resolving this key issue is susceptible to generalized, class-wide proof.” Gorss, 29 

F.4th at 844. The Court utilizes this inquiry in its analysis. 

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decisive date on which a consumer terminated her EBR highlights the difficult process that the 

Court would necessarily wade into to determine EBR termination dates. The Do-Not-Contact 

form for Plaintiff indicates a date months after the alleged date she requested that Defendant not 

contact her. [68-1; 104, at 13.] Indeed, as Defendant points out, it potentially invalidates her 

claim. [109, at 13.] Other members of both classes would likely similarly have multiple dates of 

supposed termination, relying in large part on call records with varying indications of intent to 

terminate, as the Court emphasized in its July 23, 2021 order. [70, at 2.] Plaintif f provides no 

clarity on how to narrow down which members effectively terminated their business relationship 

with Defendant, other than she might in the future be “able to develop a method to identify such 

requests through systematic searches.” [103, at 11.] This is insufficient. 

Further, the records before the Court leave unclear why consumers have cancelled 

service. As Defendant points out [109, at 14], there are multiple reasons a consumer might 

cancel service which do not include a specific internal Do-Not-Call request.3 Plaintiff would 

need to present evidence “that varies from member to member,” rather than “generalized, classwide proof” to demonstrate that class members successfully revoked their EBR with Defendant. 

Gorss, 29 F.4th at 844. Once again, the Court would need to dive into the factual circumstances 

of each customer cancellation, which makes this question individual, rather than common. 

Gorss, 29 F.4th at 843–44. 

For these reasons, the Court holds that “plaintiff's class allegations are facially and 

inherently deficient,” as the Court’s determination regarding the EBR defense will likely 

3 The parties dispute whether putting oneself on a company’s internal Do-Not-Call list is the only method 

of terminating an EBR. It is unclear all the possible ways in which a customer can terminate an EBR. 

See 47 C.F.R. § 64.1200(f)(4); In re Rules & Regulations Implementing the Telephone Consumer 

Protection Act of 1991, 30 F.C.C. Rcd. 7961 (July 10, 2015) (noting that a consumer may revoke consent 

by call, in-person, “among other possibilities”); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 

1048 (9th Cir. 2017) (holding that “[r]evocation of consent must be clearly made and express a desire not 

to be called or texted”). The Court need not decide this issue for the purpose of this order. 

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predominate the Court’s adjudication, making this case unsuitable for classwide resolution. 4 

Garvey, 2019 WL 2076288, at *1. 

IV. Conclusion 

For these reasons, Defendant’s motion to strike class allegations [93] is granted. 

Dated: January 9, 2023 __________________________

 Robert M. Dow, Jr. 

 United States District Judge 

4 Because the Court has determined that Plaintiff’s proposed classes fail on typicality and, in the 

alternative, predominance grounds, the parties’ arguments regarding Plaintiff’s requested injunctive relief 

are moot. 

Case: 1:20-cv-02601 Document #: 115 Filed: 01/09/23 Page 15 of 15 PageID #:1133