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.”).

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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.

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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).

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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.

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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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