Fifth Third Bank and a credit card processing company are arguing against class certification for a lawsuit filed by a group of businesses that allege the bank violated California law on recording phone calls.

Fifth Third  Bank, Vantiv Inc. and Vantiv subsidiary National Processing Co. argued in an Illinois federal court that each phone call with the California businesses pertains to different issues. The banks and credit card processor argued that the only way to find out the subject of each call is to listen to each individual recording, which in their opinion, means class certification should not be granted.

The California businesses believe the sheer fact the calls were recorded without warning is the common denominator in the lawsuit. California law requires that all parties in a telephone conversation provide consent to recording a phone call prior to the call being legally recorded.

According to court documents, the California businesses believe more than 1 million illegally recorded calls have been made among them. Fifth Third Bank and Vantiv allege the businesses have no evidence to support the number of calls, and should be denied certification “on these grounds alone.”

Alleged Violations of California Law on Recording Phone calls

According to the Cook County Record, California small business owners James Wang, Sat Narayan, Kaeran Sudmalis-Testi, Ihab Ghannam and Blanca Saenz filed a lawsuit in Chicago federal court on Dec. 9, 2016. The plaintiffs alleged International Payment Services LLC, of Henderson Nev., which does business as Elitepay Global, and Ironwood Financial of Salt Lake City, which does business as Ironwood Payments, illegally recorded phone calls with California businesses.

A call center located in Naperville, Ill. allegedly was used by Ironwood to convince retailers to use particular banks to process debit and credit card transactions. The plaintiffs allege they provided sensitive information during the phone calls because they did not know the calls were being recorded.

Named defendants in the lawsuit include companies that purportedly hired the call center and in addition to those previously named, include Wells Fargo and First Data Corp.

According to the Cook County Record, U.S. District Judge Rebecca R. Pallmeyer said in March that the California Invasion of Privacy Act (CIPA) doesn’t require plaintiffs to provide evidence they’ve suffered or been threatened with actual damages. The sheer act of invading the plaintiff’s right to privacy is in itself a harm as interpreted by California District Courts, she said.

The California law on recording phone calls does not require that the people on the phone lines provide verbal consent to the recording of the call. Implied consent is acceptable, and is provided if an automated beep tone is provided at the start of the call and the person remains on the line. The beep is a universal noise indicating the beginning of a recording. If a person hears that beep and stays on the call, implied consent is given.

The California Law on Recording Lawsuit is Wang et al. v. Wells Fargo Bank NA et al., Case No. 1:16-cv-11223, in the U.S. District Court for the Northern District of Illinois.