Partner Alison M. Crane and associates Davis J. Reilly and Nicholas J. Bernate defeated a motion for class certification in a case that alleged systematic violations of Penal Code section 632 as well as unfair business practices. Section 632 is part of California’s Invasion of Privacy Act (Cal. Penal Code §630 et seq.) and prohibits the recording of a “confidential communication” without the consent of all parties. The case is one of many purported class actions filed around the state against business entities relating to call recording practices in call centers.
The issue presented was whether Plaintiffs could certify a class of consumers who alleged their telephone calls with a lending company had been recorded without their consent. This Penal Code section imposes a $5,000.00 penalty on calls which violate the section. Based on Defendants’ call volume, Plaintiffs alleged the proposed class was entitled to billions of dollars in statutory damages.
In order to certify a class, Plaintiffs must demonstrate that questions of law or fact common to class members predominate over individual issues. The Bledsoe team argued the analysis as to whether a reasonable expectation of privacy existed for any particular call, i.e. whether it was a confidential communication, required a highly individualized factual inquiry into each allegedly offending call. The trial court agreed ruling Plaintiffs “have not shown how the issue of whether callers had an objectively reasonable expectation of privacy would be resolved on a class-wide basis.” Thus, the case would devolve into “countless inefficient mini-trials” and common questions would not predominate. The Court further found the Plaintiff class was not ascertainable on the record presented and that a class action was not a superior vehicle for adjudicating these claims.
Bledsoe is gratified by the Court’s thorough, well-reasoned decision denying certification of Plaintiffs’ meritless claims against our client. The issues presented by Penal Code Section 632 turn on factors unique to each caller and any claims based on alleged violations of the statute are inappropriate for class treatment.