VonDeylen v. Aptive Environmental, LLC

What’s at Stake

Corporations should not be allowed to use a contract about one thing to get out of lawsuits about a totally different thing, especially if the contract is expired.

Summary

In May 2020, Kristi VonDeylen hired Aptive to provide quarterly pest control services at her home for twelve months. They entered into a service agreement, which included an arbitration provision. That meant any disputes about the pest control services would need to be settled outside of court. On June 2, 2023, more than two years after the parties’ contract and their relationship expired, Ms. VonDeylen started getting automated texts from Aptive asking her to do things like set up autopay, confirm her next appointment, and be ready for service. Each time she received a text, she replied STOP and received an automated response that she had been unsubscribed. Even so, the texts continued. She called customer service, who apologized and said a glitch in Aptive’s system had caused former customers to receive these texts. Still, the texts continued. With few other options left, Ms. VonDeylen sued on May 31, 2024, bringing class claims for invasion of privacy and negligent and willful violations of the Telephone Consumer Protection Act.

Aptive moved to compel her case into arbitration, claiming the 2020 service agreement—specifically its arbitration provision—covered this dispute. But this had nothing to do with Aptive’s delivery of pest control services, and its 2020 contract with Ms. VonDeylen was no longer in effect. What’s more, individual arbitration is an extremely inefficient way to resolve TCPA claims like hers, which usually involve small amounts of money but effect a large number of consumers. Ms. VonDeylen’s case was a class action; it was intended to make whole all of the consumers who had received the texts. What Aptive was proposing would mean each one of those consumers would have to file their own case with an arbitrator. When cases like this are “sent to” arbitration, they almost never “go to” arbitration; they’re simply dropped. As explained in a 2004 Seventh Circuit opinion, “The only realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

Core Legal Problem

In the district court, Ms. VonDeylen did not dispute that in 2020 she had once formed a valid agreement to arbitrate disputes with Aptive. However, she argued that the expired service agreement did not cover her TCPA claims. After all, this was not a lawsuit about a failure to provide quarterly pest control services; it was about telephone harassment that began long after pest control services ended and the contractual relationship was terminated. The district court agreed with her arguments and denied Aptive’s motion to compel arbitration. Aptive has appealed that decision to the U.S. Court of Appeals for the Eighth Circuit.

We are co-counsel for Ms. VonDeylen on appeal and urge the Eighth Circuit to affirm the district court’s decision on the grounds that her claims fall outside the scope of the expired contract and its arbitration provision. We are defending the district court’s correct decision that she should not be forced to arbitrate her claims because they are unrelated to her former agreement with Aptive.

This case presents an opportunity to continue developing good case law about the reach or “scope” of arbitration agreements. The issue of scope has received much public attention recently, such as the infamous Disney+ wrongful death arbitration case. In that case, Disney tried to use the Terms of Service connected with a man’s expired Disney+ account to get out of a wrongful death lawsuit the man filed years later, after his wife died of anaphylactic shock in a Disney park. It is important to push back on corporate attempts to avoid consequences for breaking the law by forcing consumers, workers, and other civil litigants into arbitration.