Verizon Asks Judge to Dismiss Call Recording Class Action Lawsuit

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Verizon Wireless LLC asked a California federal judge Friday to dismiss a class action lawsuit alleging it secretly recorded cellphone conversations with non-customers, saying that the plaintiff in the case did not name an actual invasion of privacy under state law.

The class action lawsuit, filed by plaintiff John Lofton, claims that Verizon Wireless violated California’s Invasion of Privacy Act by recording cellphone conversations with individuals who were not Verizon customers through its national Monitoring Disclosure policy, in which Verizon would often state, “This call may be monitored for quality purposes.”

Verizon argues that the class action lawsuit should be dismissed because its monitoring policy does not violate the California privacy law.

Lofton alleges he was contacted by the collections agency Collecto Inc. that Verizon hires for collections purposes. Collecto contacted Lofton’s cell phone to collect a payment, although he was never a Verizon customer. Loften says he told the collections agency that when he was contacted. Verizon argues that while the Monitoring Disclosure policy is invoked in most cases, it is not required in three narrow categories in which Lofton was contacted, even though the call was still recorded.

“Invasion of a tangible privacy right is an essential element of a cause of action under California’s Invasion of Privacy Act,” Verizon explains in its Dec. 17 motion to dismiss. “But the plaintiff’s theory that the Invasion of Privacy Act dispensed with a privacy element is erroneous.”

Verizon Wireless further argues that Lofton “fails to plead facts showing an invasion of privacy: Plaintiff did not allege, and he cannot possibly allege, that the two alleged undisclosed recordings invaded his privacy in any tangible manner.”

Lofton says that the phone calls “wasted his cell-phone time [minutes],” but Verizon argues that the charge is more appropriate under the Telephone Consumer Protection Act, and that “undisclosed recordings” did not cause the use of his cell-phone minutes.

“Plaintiff fails to allege that any private information was disclosed, and he fails to allege infringement of any tangible or recognizable right to privacy,” the motion states. “Undisclosed recording that were made under the narrow circumstances of Verizon Wireless’ policy may seem intrusive, but they were not intrusive to personal privacy.”

Lofton filed his original class action lawsuit in June 2012 in Alameda County Court, California. He has since filed three amendments. The most recent amendment included the Telephone Consumer Protection Act violation allegations.

Collecto got Lofton’s number through skip-tracing, the term used for buying or obtaining locational data from a third-party service.

He claims that Collecto called him twice through a robo-call system until the representatives believed him that he was not the person they were looking for.

He learned during the second call that the calls had been recorded, without informing him. He argues that Verizon Wireless is liable even if it was Collecto making the phone calls because the cellphone company instructed the collections agency to not disclose that the call was being recorded in certain situations.

Lofton is seeking to represent all non-Verizon Wireless customers who were contacted in the same way he was contacted within the last four years before the initial lawsuit was filed.

Verizon explained that vendors are permitted to bypass the Monitoring Disclosure if they think the recipient was contacted by accident and/or before the recipient’s identity is verified.

The plaintiff is represented by David C. Parisi and Suzanne Havens Beckman of Parisi & Havens LLP and by Ethan Preston of Preston Law Offices.

The Verizon Wireless Call Recording Class Action Lawsuit is Lofton v. Verizon Wireless (VAW) LLC, Case No. 3:13-cv-05665, in the U.S. District Court for the Northern District of California.

UPDATE: On Feb. 26, 2016, the Verizon Wireless TCPA class action settlement is now open. Click here to file a Claim Form or visit http://DebtCollectionSettlement.com.

UPDATE 2: On Aug. 15, 2016, Top Class Actions viewers started receiving Verizon class action settlement checks worth as much as $508.08! Congratulations to our readers who submitted claims and got PAID!