Cert. Granted in Omni Hotels Wiretapping Class Action Lawsuit

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A federal judge certified an Omni Hotels wiretapping class action lawsuit, deciding that the company’s failure to maintain call recordings and logging data did not sufficiently hamper the ascertainability requirement.

Lead plaintiff Steven Ades alleges that he made a phone call to the company’s customer support number over a wireless connection and the company had recorded it without warning him or requesting consent, a violation of California state statute. In the order granting certification, the judge noted that “Omni did not have a policy during the Class Period of warning callers that their calls would be recorded,” and only began warning callers after the class action lawsuit had been filed.

However, the company still said that the plaintiffs would be unable to meet Rule 23(b) pleading requirements including ascertainability and predominance of a class action lawsuit compared to other forms of litigation. In the case of the former, the discovery process yielded that while Omni Hotels used various methods of logging and call recording, one of its vendors had deleted some 900,000 records that the plaintiffs’ class action attorneys argued would provide information on which to determine the class.

The judge disagreed, noting that decision in the same district noted that it is “enough that the class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description.” While Class Members are often mailed or emailed notices of a class action settlement if one comes, they are also informed through postings on websites and advertisements in periodicals.

Further, the predominance was satisfied even though some callers may have provided consent, according to the order. For one, the Class would still be large enough to litigate the issue of alleged violations of California state statutes regarding recording calls made to cellular phones. More importantly, the judge noted, “Despite extensive discovery, Omni has not produced evidence that a single person meeting the Class definition actually consented to a call being recorded during the Class Period.”

The Class includes all individuals who, between March 15, 2012 and March 22, 2013, inclusive, while physically present in California, participated in a telephone call with a live representative of Omni that was: (1) placed to [one of several Omni toll-free numbers], (2) made from a telephone number that includes a California area code; and (3) transmitted via cellular telephone on the network of AT&T, Verizon Wireless, or Sprint.”

The plaintiffs are represented by class action attorneys Zev B. Zysman of the Law Offices of Zev B. Zysman and by James F. Clapp, James T. Hannink and Zach P. Dostart of Dostart Clapp & Coveney LLP.

The Omni Hotels Wiretapping Class Action Lawsuit is Steven Ades, et al. v. Omni Hotels Management Corp., et al., Case No. 13-cv-02468, in the U.S. District Court for the Central District of California.