Burrow v. Sybaris Clubs International, Inc. et al
Filing
139
ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/10/2016:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT C. BURROW, on Behalf
of Himself and Others
Similarly situated,
Case No. 13 C 2342
Plaintiff,
Judge Harry D. Leinenweber
v.
SYBARIS CLUBS INTERNATIONAL,
INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff’s Motion for Partial Summary
Judgment
[ECF
No.
121],
and
Defendants’
Motion
entitled
“Position Statement on the Issue of Employee Consent” [ECF No.
120].
For
the
reasons
stated
herein,
Plaintiff’s
Motion
is
denied and Defendants’ Motion is granted in part and denied in
part.
I.
BACKGROUND
Plaintiff, Robert Burrow, used to work at the reservations
desk for one of Defendant Sybaris Clubs International’s five
“romantic getaway” motels.
The reservations desks at each of
Sybaris’s locations are open twenty-four hours a day, including
weekends and holidays.
telephone
recording
In November 2011, Sybaris purchased a
system
called
“ShoreTel.”
The
call
recording system enabled Sybaris and Defendants Randell Repke
and Charlene Farrell to record all incoming and outgoing calls
to/from
each
of
Sybaris’s
reservation
desks,
and
these
to
calls
store,
access and email the recorded calls.
Plaintiff
without
argues
anyone’s
wiretap laws.
the
consent
recording
in
of
violation
of
state
was
and
done
federal
Because the ShoreTel system was not installed at
the same time for each Sybaris location, the Court certified a
class defined as:
All persons who made a telephone call into or out of
the reservation telephone lines at Sybaris’ five
locations between the following dates:
(1) Downers
Grove, Illinois between March 19, 2012, and April 11,
2013; (2) Northbrook, Illinois between May 11, 2012
and April 11, 2013; (3) Frankfort, Illinois between
May 14, 2012 and April 11, 2013; (4) Mequon, Wisconsin
between May 25, 2012 and April 11, 2013; and (5)
Indianapolis, Indiana between June 15, 2012 and
April 11, 2013.
It appears undisputed that Sybaris did not inform its customers
that
telephone
consent).
calls
were
being
recorded
(or
obtain
their
But the parties dispute whether the Sybaris employees
consented to the recordings.
By law, if all of the employees are found to have consented
to
the
calls
extinguished.
being
recorded,
the
claims
of
the
class
are
See, e.g., 18 U.S.C. § 2511(d) (An interception
does not violate the Federal Wiretapping Act “where one of the
parties to the communication has given prior consent.”).
- 2 -
Thus,
the
Court
chose
to
divide
the
class
into
two
subclasses
—
Sybaris employees and customers — and determine the employee
consent issue before proceeding further.
If it is determined
that
not
some
or
all
of
the
employees
did
consent
to
the
recordings, then the nonconsenting employees and the customers
will be in the same boat, and their claims can proceed together.
The parties have issued notice to, and began deposing, the
employee subclass.
After completing a portion of the employee
depositions, the parties returned to Court and reported their
progress.
Plaintiff
argued
that
the
evidence
gathered
was
sufficient to enable the Court to make a determination on the
employee consent issue.
Defendants contended that the Court
would only be able to rule on the consent issue once all the
employees were deposed, unless the parties stipulated as to what
the remaining employees would say.
The Court asked the parties
to submit cross-motions outlining their positions and suggesting
a course of action for the litigation going forward.
Plaintiff
filed
Judgment;
the
present
Motion
for
Partial
Summary
Defendants filed the present Motion entitled “Position Statement
on the Issue of Employee Consent,” asking the Court to either
(1) consider a motion for decertification of the class, or (2)
order the depositions of the remaining employees.
considers both Motions concurrently.
- 3 -
The Court
II.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
FED. R. CIV. P. 56(a).
judgment as a matter of law.”
facts
are
those
that
affect
the
outcome
of
Material
the
lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
genuine
a
dispute
exists
“if
the
evidence
is
such
that
reasonable jury could return a verdict for the nonmoving party.”
Id.
If the moving party satisfies its initial burden, the non-
moving
party
remains
on
proof.”
must
demonstrate
issues
Knight
for
v.
which
Wiseman,
“that
a
triable
nonmovant
590
F.3d
issue
bears
458,
the
of
fact
burden
463–64
of
(7th
Cir.
to
make
2009).
The
judge’s
role
at
summary
judgment
is
credibility determinations or weigh the evidence.
Haupert, 481 F.3d 543, 550 (7th Cir. 2007).
summary
judgment
is
not
to
be
used
to
not
Washington v.
In other words,
resolve
evidentiary
conflicts, but merely to identify their presence or absence.
Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994).
In determining whether a genuine issue of material fact
exists,
the
favorable
to
Court
the
construes
non-moving
all
evidence
party.
See,
Corp., 200 F.3d 485, 491-92 (7th Cir. 2000).
- 4 -
in
the
Bellaver
light
v.
most
Quanex
III.
The
Federal
ANALYSIS
Wiretap
Act
punishes
any
person
who
“intentionally intercepts [or] endeavors to intercept . . . any
wire, oral, or electronic communication.”
18 U.S.C. § 2511(a).
“Intercept” simply means the “acquisition of the contents of any
. . . communications through the use of any . . . device.”
§ 2510(4).
The Act also creates a private cause of action for
any person whose communication is intercepted.
The
law
provides
for
statutory
damages in appropriate cases.”
under
the
Id.
Act
intentionally
a
plaintiff
intercepted
a
damages
as
well
Id. § 2520(b).
must
prove
Id. § 2520(a).
“punitive
To state a claim
that
communication.
as
Id.
the
defendant
§ 2511(1)(b).
The intent requirement under the Act “does not, however, require
any intent to violate the law, or even any knowledge that the
interception would be illegal.”
Narducci v. Vill. of Bellwood,
444 F.Supp.2d 924, 935 (N.D. Ill. 2006).
broadly written, there is a catch.
Although the Act is
An interception does not
violate the Act “where one of the parties to the communication
has given prior consent.”
18 U.S.C. § 2511(d).
There is no dispute that Sybaris intended to record phone
calls and in fact did record phone calls.
defense on the consent exception.
Sybaris rests its
Consent is an affirmative
defense that Sybaris bears the burden of proving.
Valentine v.
WideOpen W. Finance, LLC, 288 F.R.D. 407, 413 (N.D. Ill. 2012)
- 5 -
(citing
Doe
v.
Smith,
429
F.3d
706,
706
(7th
Cir.
2005)).
Sybaris argues (and has argued since the inception of this case)
that the consent exception should be construed broadly, based
largely
on
the
Second
Circuit’s
opinion
in
United
States
v.
Amen, 831 F.2d 373, 378 (2d Cir. 1987) and other cases that
follow that opinion.
See, e.g., Griggs-Ryan v. Smith, 904 F.2d
112, 116 (1st Cir. 1990) (“We agree with the Second Circuit that
‘Congress
intended
the
consent
requirement
to
be
construed
broadly.’”) (citing Amen, 831 F.2d at 378)).
In the class certification order, the Court relied on the
Seventh Circuit’s opinion in United States v. Daniels, 902 F.2d
1238
(7th
Amen.
In
Cir.
1990),
Daniels,
a
to
reject
Sybaris’s
defendant
sought
to
argument
based
suppress
on
evidence
obtained by the FBI recording his telephone calls from jail on
the ground that it violated the federal wiretapping law.
1245.
Id. at
The Seventh Circuit concluded that the FBI’s actions did
not violate the Federal Wiretap Act because they fell within the
exception
for
wiretapping
done
“by
an
investigative
or
enforcement officer in the ordinary course of his duties.”
law
Id.
In dicta, the court also commented on the application of the
consent exception; stating that the defendant’s consent could
not
be
inferred
from
him
signing
a
form
indicating
that
he
understood that his calls “may be monitored and recorded” and a
provision in the Code of Federal Regulations informing inmates
- 6 -
their calls may be monitored.
Id.
In doing so, the court
rejected the Second Circuit’s holding in Amen.
Id.
remarked
that
synonyms,”
“[t]aking
a
“knowledge
risk
is
and
not
consent
the
same
consequences if the risk materializes.”
Because
the
Seventh
Circuit
are
not
as
The court
consenting
and
to
the
Id.
rejected
Amen’s
holding
in
Daniels, this Court refused to give weight to Sybaris’s broad
consent arguments at the class certification stage.
But, as the
Court acknowledged in that order, Daniels did not completely
foreclose the possibility that implied consent may be inferred
from the surrounding circumstances.
The dicta from Daniels must
be read in light of the facts at issue in that case.
Prisoners
are faced with the Hobson’s choice of “consenting” to having
their private calls recorded or being cut off from the outside
world.
Under such circumstances, the idea of implied consent
does indeed seem ludicrous.
See, Daniels, 902 F.2d at 1245
(“That is the kind of argument that makes lawyers figures of fun
to the lay community.”).
the
context
employees.
interact
of
an
The same concerns are not present in
employer
recording
calls
made
by
its
The employee is not dependent on the phone calls to
with
the
outside
world
and
does
not
have
the
same
personal interest in the business calls as a prisoner has in his
or her private calls.
- 7 -
The Court finds this case much more similar to Griffin v.
City of Milwaukee, 74 F.3d 824 (7th Cir. 1996).
There, the
Seventh Circuit reviewed the district court’s order granting the
defendants’ motion for summary judgment on the plaintiff’s claim
that defendants’ intercepted her personal telephonic and nontelephonic
Act.
the
conversations
Id. at 825.
alleged
on
violation
from
Id. at 828.
the
of
the
Federal
Wiretap
The court inferred the plaintiff’s consent to
interception
circumstances.
relied
in
facts
the
surrounding
facts
and
Specifically, the Griffin court
that:
(1)
the
defendants informed
the
plaintiff that calls from her workstation might be monitored for
training,
evaluation,
and
supervision
purposes;
(2)
the
plaintiff testified in her deposition that she knew her phone
calls from her workstation could be monitored by supervisors;
and
(3)
Griffin,
the
74
recording
F.3d
at
system
828.
was
These
noticeable
and
facts
circumstances
and
obvious.
supported an inference that the plaintiff had actual notice of
the recordings and impliedly consented to them.
See, Amati v.
City of Woodstock, 176 F.3d 952, 955 (7th Cir. 1999); Narducci
v. Vill. of Bellwood, 444 F.Supp.2d 924, 936 (N.D. Ill. 2006).
Similarly, here the Sybaris employees who have been deposed
have made various admissions suggesting that they were aware
their calls were being recorded, they were given actual notice
of
the
recording
system,
and
they
- 8 -
continued
to
work
without
objection.
The general managers at each of the five Sybaris
locations in question stated that they provided actual notice to
the employees that the calls would be recorded by the ShoreTel
phone system.
See, Def.’s Mem., Exs. A, D, J, U.
Although all
of the employees have not been deposed, of those that have, all
(with the exception of Plaintiff’s niece and sister) confirmed
that
they
were
informed
of
the
recordings
by
their
general
managers before or at the time the system was activated. 1
Even
Plaintiff admitted that he learned from his general managers
that the ShoreTel system recorded all calls, although he claims
it was about a month after the system was installed.
115:12-22.
Ex. HH,
In addition, a total of nineteen affiants, excluding
the general managers, confirmed that Sybaris gave actual notice
to the employees of the ShoreTel recording system before the
system was activated. 2 Others, including Plaintiff, stated that
_________________________________
1
See, Def.’s Mem., Ex. EE (Depo. of Patrick Stewart), 36:9-14,
38:20-39:3; Ex. Y (Depo. of Christie Culley), 43:17-23, 44:1424; Ex. FF (Depo. of Ryan Stewart), 16:3-24, 17:19-18:2, 65:2366:7; Ex. AA (Depo. of Christian Rivera), 17:20-18:10, 19:2121:22; Ex. DD (Depo. of Richard Spandiary), 60:7-17; 68:5-69:8;
Ex. BB (Depo. of Ismael Ruiz), 15:2-20, 34:18-35:22, 36:20-24;
Ex. CC (Depo. of Mario Ruiz-Camarillo), 14:1-24, 15:5-10, 17:17, 17:17-18:7, 48:4-12.
2
See Def.’s Mem., Ex. B (Annette Anderson), ¶ 6; Ex. C (Patrick
Stewart), ¶ 4; Ex. E (John Baghdasarian), ¶¶ 4-5; Ex. F (Ismael
Ruiz), ¶¶ 3, 5 (misnumbered as ¶ 4); Ex. G (Michelle
Vanderhorst), ¶ 4; Ex. H (Christian Rivera), ¶¶ 4-5, Ex. I (Mary
Anne McDonald), ¶ 4; Ex. K (Christie Culley), ¶ 4; Ex. L (Brandi
Currie), ¶ 5; Ex. M (Eric Garcia), ¶ 3; Ex. N (Jennifer
- 9 -
the recordings were common knowledge.
See, e.g., Def.’s Mem.,
Ex. HH, 108:22-109:7; 115:12-22; Ex. B, ¶ 4; Ex. G, ¶ 3.
And
many performed or received phone ratings on the recorded calls.
See, e.g., Def.’s Mem., Ex. C, ¶ 4; Ex. F, ¶ 6 (misnumbered as
¶ 4);
Ex.
H,
¶
6.
Notably,
seven
of
the
deponents
even
explicitly stated that they consented to the recordings. 3
At this point, the only three witnesses to have claimed
they
did
not
his
Plaintiff,
receive
sister
outliers
have
made
inclined
to
infer
recordings.
never
calls,
For
“formally
he
actual
and
admissions
that
example,
notified”
admitted
his
that:
they
notice
niece.
from
of
But
which
impliedly
although
the
recording
even
the
these
Court
that
the
ShoreTel
(1)
the
recordings
three
would
consented
Plaintiff
are
claimed
system
became
to
he
be
the
was
recorded
“common
knowledge” within a month after the system was installed, Def.’s
Mem., Ex. HH, 108:22-109:7; 115:12-22; (2) he learned about the
recordings from his general manager, id. at 124:20-125:5; and
_________________________________
Spriesch), ¶ 4; Ex. O (Bridget Kimmons), ¶ 3; Ex. P (John
Kuchler), ¶ 3; Ex. Q (Fred Wahlen), ¶ 4; Ex. R (Jessica Baker),
¶ 4; Ex. S (Victor Covarrubias), ¶ 4; Ex. T (Denise Fischer),
¶ 4; Ex. V (Camille Green), ¶ 4; Haizlip Ex. W (Danielle
Adrianna), ¶ 4.
3
See, Def.’s Mem., Ex. FF, 24:2-9; Def.’s Mem., Ex. EE, 38:9-13,
38:20-39:1; Def.’s Mem., Ex. GG (Depo. of Jonathan Upton),
21:21-24; Def.’s Mem., Ex. DD, 30:14-18; Def.’s Mem., Ex. BB,
50:22-51:2; Def.’s Mem., Ex. AA, 24:4-17; and Def.’s Mem.,
Ex. Y, 47:9-24.
- 10 -
(3) he listened to recorded calls with his manager as part of
informal management training he received, id. at 175:12-177:17.
Similarly,
Plaintiff’s
niece,
Amanda
Burrow,
denied
being
informed of the recording system, but acknowledged that she:
(1) was advised when she was hired that her calls would be
recorded and she would receive phone grades as part of her job,
Def.’s Mem., Ex. X, 16:4-15; (2) had no objection to her calls
being recorded (other than her personal calls), id. at 24:225:1; (3) assumed calls would be recorded after the installation
of the ShoreTel system, id. at 31:19-32:18; and (4) continued
making personal calls after becoming aware of the recordings,
id.
at
21:4-12.
Plaintiff’s
sister,
Teresa
Franczak,
also
denied being informed of the recordings until after this action
was filed, but she admitted that she accessed recorded calls on
her manager’s computer after the ShoreTel system was installed
to train new employees.
Def.’s Mem., Ex. Z, 19:8-25:20, 61:5-
22.
Under such circumstances, the evidence suggests that the
majority
of
the
Sybaris
employees
impliedly
consented
by
continuing to make phone calls despite having actual notice of
Sybaris’s use of the ShoreTel system.
See, Amati, 176 F.3d at
955 (“If there is actual notice . . . there will normally be
implied consent.”); Narducci, 444 F.Supp.2d at 936 (“[C]onsent
need not be explicit, but may rather be implied from “actual
- 11 -
notice” of the interception.”).
But the Court is not in a
position to make such a factual determination because there are
a number of employees who have not yet been deposed, and the
parties were unwilling or unable to stipulate as to what those
individuals
will
say.
If
the
remaining
employees
testify
consistently with the majority of their colleagues, then the
claims will fail.
See, 18 U.S.C. § 2511(d).
If the remaining
employees testify to an experience similar to that of the three
outliers, there will be a question of fact as to whether the
Sybaris employees received actual notice of the recordings, in
light of the Court’s view of implied consent herein discussed.
The Court is baffled by Plaintiff’s request for partial
summary judgment on the facts presented; viewing the evidence in
the light most favorable to Defendants (as the nonmoving party)
it is puzzling as to how this evidence could show undisputedly a
lack of implied consent.
Moreover, Plaintiff’s arguments in
favor of a more stringent test for implied consent are flawed.
First,
the
Amendment
criminal
cases
and
cited
the
context
by
consent
have
no
Plaintiff
standard
application
discussing
for
to
the
informants
the
facts
Fourth
in
at
the
hand.
Further, Plaintiff fails to cite any support for his suggestion
that control of the call recording capabilities and/or knowledge
of the extent of the recording capabilities is required before
an individual can validly consent to being recorded.
- 12 -
It is not
clear to the Court that these considerations are even relevant
in
determining
whether
consent
has
been
conferred.
An
individual can consent to being recorded despite not being fully
aware of the wiretap laws, the meaning of legal consent or her
right
to
refuse
to
consent.
And
finally,
just
because
the
employees’ testimony regarding their consent was obtained after
the fact does not mean their consent is post-hoc; a deponent
may, and is often required to, recount past occurrences.
Based
on the evidence presented thus far, the Court sees no reason why
the
Sybaris
employees
could
not
validly
consent
to
the
recordings.
IV.
CONCLUSION
For reasons stated herein, Plaintiff’s Motion for Partial
Summary Judgment [ECF No. 121] is denied.
[ECF
No.
parties
120]
are
is
granted
ordered
to
in
part
complete
and
the
Defendants’ Motion
denied
in
remaining
part.
The
employees’
depositions.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:6/10/2016
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