Sierra Trading Post Can’t Dodge Call Recording Class Action Lawsuit
By John Curran
California statutes provide protections for consumers regarding a company’s use of customer service phone calls for analysis and other reasons, and Judge Jeffrey T. Miller recently decided that Sierra Trading Post could not exempt itself from these laws in a motion to dismiss a resident’s class action lawsuit alleging the company secretly recorded his phone calls.
The company alleged that calls between plaintiff Scott Bales and its employee(s) were not confidential and that the statute exempted “the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility.” In denying the motion to dismiss the class action lawsuit, Judge Miller wrote that in the case of the latter claim, the firm’s motion did not make a compelling argument for him to “read into the statute a new ‘service-observing’ exception that would permit companies to secretly record telephone conversations for quality assurance purposes.”
Moreover, he decided that just because telephone companies no longer were able to use the equipment that would enable them to provide information regarding those tariffs, he found the motion unpersuasive in attempting to expand the statute to those same activities by companies not defined as utilities.
He also took issue with Sierra Trading Post’s allegations that Bales had no reasonable expectation of privacy regarding his phone calls to company customer representatives. The California Penal Code sections 632.5-632.7 require the consent of all parties for one to record phone calls. Judge Miller noted that Bales had provided personal financial information and therefore had a reason to believe that data, “including his credit card, would not be recorded absent the required notice.”
The statute is designed to be far-reaching, according to the analysis provided in the denial of the motion, specifically because it was written in the attempt to protect consumers and therefore the concerns Bales had regarding his financial information were sufficient for the case to continue.
As it stands, the putative class action lawsuit regarding the company’s choice to record phone calls would cover all California residents during the period determined by the statute of limitations who may have had their conversations monitored by Sierra Trading Post.
The plaintiff is represented by James F. Clapp, James T. Hannick and Zach P. Dostart of Dostart Clapp & Coveney LLP.
The Sierra Trading Post Call Recording Class Action Lawsuit is Scott Bales v. Sierra Trading Post Inc. et al., Case No. 13-cv-01894, in the U.S. District Court, Southern District of California.
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