Stevens-Bratton v. TruGreen: When the Lawn Care Contract Ends, So Does the Arbitration Clause for Later Telemarketing Calls

Judge Keith wrote the unpublished opinion for the panel.

The Setup

In May 2013, the customer signed a lawn care agreement. It included a contact provision letting the company call her cell phone with an autodialer or prerecorded voice "to discuss my account and lawn care services, including current and possible future services," revocable at any time. The contract also contained a broad arbitration clause and class action waiver, but no survival clause.

She registered her number on the National Do-Not-Call Registry in November 2013 and cancelled the service in May 2014. Starting in January 2015 she received more than ten autodialed telemarketing calls, which continued even when she asked them to stop. She filed a putative class action under the Telephone Consumer Protection Act (TCPA). The district court compelled arbitration and denied class certification.

The Litton Framework

Under the Supreme Court's decision in Litton Financial Printing Division v. National Labor Relations Board, a post-expiration dispute is arbitrable only if it has its "real source in the contract." That happens in three situations, and the Sixth Circuit found none applied:

1. Facts arising before expiration. The company cited the contract negotiations, her lawn care needs and her decision to provide them her number. The court said the services and negotiations weren't material to a dispute about phone calls. The heart of the case was the ten-plus calls, all after expiration. "Absent those phone calls, there is in fact no dispute at all."
2. A vested right. Rights that vest are ones "worked toward or accumulated over time," like severance pay. The right to call someone's number doesn't accumulate and can be revoked at any moment, as the contract itself said.
3. Survival under contract interpretation. Did permission to discuss "possible future services" survive termination? The district court admitted that reading and the opposite reading were equally plausible. That's ambiguity, and ambiguity gets construed against the drafter. Thus the calling permission ended with the contract.

The court also distinguished its own Huffman decision, which involved an agreement with a survival clause. This agreement had none, making it "a completely expired agreement."

The Other Issues

• Unconscionability: The court summarily rejected the argument that the "any claim, dispute or controversy" clause was unconscionably broad, since it had upheld similar language before.
• Class waiver: The district court never analyzed whether the class waiver applied to post-expiration conduct, so the panel vacated the class certification denial and sent it back.

Why It Matters

• Former customers aren't current customers. A broad arbitration clause doesn't automatically follow a relationship after it ends.
• Draft carefully. Without a survival clause, a company may lose arbitration for post-termination disputes, and ambiguous calling permissions get read against the company.
• Consent can expire too. Permission to call about "future services" may not outlive the contract.

Reversed and remanded.

Read the full Sixth Circuit opinion.