WebinarOn Thursday, September 10 at 12:00 p.m. Central, Seyfarth attorneys Michael Burns, Robert Milligan and Jason Stiehl will present the second installment of our 2015 Class Action Webinar Series. Presenters will discuss the climate to help retailers avoid becoming targets of litigation. This webinar will provide an overview of the current class action lawsuit landscape complete with discussion of recent cases, hot areas, and valuable takeaways to inform strategy. In addition, the panel will explain business practices that retailers should implement to reduce their risk of becoming a defendant in a class action lawsuit, including class action waivers.

Topics will include:

  • Telephone Consumer Protection Act (TCPA);
  • Song Beverly Consumer Warranty Act and similar state statutes;
  • Call Recording;
  • False Advertising and Comparative Pricing Fraud; ‘
  • Gift Cards/Loyalty Programs; and
  • Data Privacy.

register

If you have any questions, please contact events@seyfarth.com.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

 

We are pleased to let you know that the webinar “Avoiding Liability and Limiting Exposure Under California’s Call Recording and Monitoring Privacy Laws” is now available as a podcast and webinar recording.

In Seyfarth’s first installment of its 2014 Class Action Webinar series, attorneys discussed how plaintiffs’ attorneys are increasingly filing class actions in California seeking to apply the state’s privacy laws to routine telephone communications between businesses and their customers.

As a conclusion to this well-received webinar, we compiled a list of key takeaway points, which are listed below.

  • CIPA applies to both in-bound and outbound calls. In some cases, companies may have compliant in-bound call procedures with appropriate disclaimers but lack such procedures with respect to outbound calls. Prudent companies will ensure that they have appropriate disclaimers for both in-bound and outbound. They should also look for opportunities to notify their customers of monitoring and call recording for quality assurance in other communications with customers, such as billing and on their website.
  • The use of a standard, nonbypassable disclaimer advising callers that their calls may be monitored or recorded is imperative.  Be sure callers hear the disclaimer before any recording or monitoring commences, ensure that the disclaimer plays for each call your company places or receives, and provide multilingual versions of the disclaimer where appropriate.  Consider using the sample language included in the presentation materials.
  • The recent trend is for consumer plaintiffs to bring CIPA claims under Section 632.7 as opposed to Section 632 to avoid the “confidential communication” requirement that may likely involve individualized inquiries that impede the ability to obtain class certification.

This blog recently reported on developments in California regarding potential liability for businesses under California’s Call Recording and Monitoring Privacy Laws for recording or monitoring inbound and outbound telephone calls with customers or employees as well certification pitfalls to such cases.  Other states, such as Illinois, have similar criminal statutes related to the recording or monitoring of such calls.  In Illinois, for example, it is a crime for any person to record any conversation or electronic communication unless done so with the permission and consent of all parties to the communication.  See 720 ILCS 5/14-2.  While recent California opinions have curtailed the ability for plaintiffs to bring class action complaints under California’s privacy laws, the Illinois Supreme Court has gone even further.  In a pair of opinions recently released by the Illinois Supreme Court, People v. Clark and People v. Melongo, the Illinois eavesdropping law was declared unconstitutional as violating the overbreadth doctrine under the First Amendment of the United States Constitution.

The Decisions in Clark and Molongo

In Clark, a Kane County man was charged with violating the eavesdropping law when he recorded judicial proceedings relating to a child support matter because there was no court reporter present.  People v. Clark, 2014 IL 115776 (March 20, 2014).  The Illinois Supreme Court recognized that while protecting “[a]udio recordings of truly private conversations are within the legitimate scope of the statute,” innocent conduct is also prohibited.  By way of example, the court explained that the statute criminalizes “(1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions of police officers with citizens” … and “(4) any other conversation loud enough to be overheard by others whether in a private or public setting.”  None of these examples implicate privacy concerns – the interest which the law was designed to protect, but would subject the recorder to criminal prosecution.  The court reasoned that the statute burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve and, therefore, is unconstitutional.
In Melongo, a Cook County woman was charged for recording three phone conversations with a court employee and then posting those recordings to her website.  See People v. Melongo, 2014 IL 114852 (March 20, 2014).  Melongo raised a slightly different issue than  the defendant in Clark.  The defendant was charged with not only recording communications without all parties’ consent, but also publishing audio recordings of those communications to her website, which violated the “publishing provision” of the statute.  Relying on the analysis in Clark, the Illinois Supreme Court held that because it had determined that the statutory provision criminalizing defendant’s recording of conversations was unconstitutional, the publication of those conversations can likewise not be unconstitutional because it would amount to a “naked prohibition against disclosure.”  In other words, as applied, the publishing provision makes it illegal to publish all manner of recorded communications, irrespective of any legitimate interest the publisher or public may have.

Conclusion

We expect the Illinois legislature to respond by drafting an updated statute that reflects the ubiquity of small, portable electronic devices in today’s world and responds to the overbreadth concerns raised in the Clark and Melongo opinions.  The impact of any future legislation will be addressed in future posts.