Burrow v. Sybaris Clubs International, Inc. et al
Filing
84
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 4/24/2015: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,
Plaintiff,
Case No. 13 C 2342
v.
Judge Harry D. Leinenweber
SYBARIS CLUBS INTERNATIONAL,
INC, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff Robert Burrow’s Motions for
(1) Class Certification [ECF No. 57], and (2) Reconsideration of
the Court’s February 18, 2015 Order denying Burrow’s Motion to
Strike Defendant Sybaris Clubs International, Inc.’s response to
the class certification motion [ECF No. 70].
For the reasons
stated herein, the Motion for Class Certification is granted and
the Motion for Reconsideration is denied as moot.
I.
BACKGROUND
A good portion of the facts in this case are undisputed.
Burrow
used
Sybaris’s
to
five
work
at
“romantic
the
Reservations
getaway”
resorts.
Desk
The
for
one
of
reservations
desks at each of Sybaris’s locations are open twenty-four hours
a
day,
including
weekends
and
holidays.
In
November
2011,
Sybaris purchased a telephone system called “ShoreTel,” which
allowed
Sybaris
to
record
the
phone
calls
phones at the various reservations desks.
made
to
and
from
Burrow argues that
Sybaris recorded all inbound and outbound phone calls from the
reservations
desks
without
anyone’s
state and federal wiretap laws.
consent
in
violation
of
Because Sybaris did not install
the ShoreTel system at the same time for each location, Burrow
seeks to represent a class of plaintiffs 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.
Sybaris’s primary argument is that it obtained consent from
its employees to record their phone calls.
Thus, according to
Sybaris, no class plaintiff has a viable claim because, under
the
Federal
Wiretap
Act
and
related
state
laws,
one
party’s
consent to recording is a defense to either party’s claim.
The
central issue for class certification purposes is consent.
II.
“To
be
certified,
LEGAL STANDARD
a
proposed
class
must
satisfy
the
requirements of Federal Rule of Civil Procedure 23(a), as well
as one of the three alternatives in Rule 23(b).”
- 2 -
Messner v.
Northshore
2012).
Univ.
Rule
typicality,
Burrow
HealthSystem,
23(a)
requires
commonality,
seeks
669
and
certification
F.3d
Burrow
adequacy
under
requires him to prove that:
802,
to
of
811
prove
(7th
“numerosity,
representation.”
Rule
Cir.
23(b)(3),
which
Id.
also
(1) the questions of law or fact
common to the members of the proposed class predominate over
questions affecting only individual members; and (2) a class
action is superior to other available methods of resolving the
controversy. Id.
Burrow bears the burden of satisfying Rule 23, which is
not “‘a mere pleading standard.’”
Comcast Corp. v. Behrend, 133
S.Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes,
131 S.Ct. 2541, 2551–52 (2011)).
must
“satisfy
elements.
Id.
through
To meet this burden, Burrow
evidentiary
proof”
each
of
Rule
23’s
In deciding a class certification motion, the
Court must conduct a “rigorous analysis” before it can determine
whether
Burrow
has
satisfied
Rule
(internal quotation marks omitted).
23’s
requirements.
Id.
This means that the Court
might need to resolve issues that also bear on the merits of the
claim, but only if those issues overlap with class certification
issues.
Id.
Despite the need for rigorous analysis, however, “the court
should not turn the class certification proceedings into a dress
rehearsal for a trial on the merits.”
- 3 -
Messner, 669 F.3d at 811.
Instead, the Court need only consider the evidence submitted by
the
parties
and
determine
whether
Burrow
has
proven
Rule 23’s elements by a preponderance of the evidence.
III.
each
of
Id.
ANALYSIS
Burrow’s claims arise under the Federal Wiretap Act (the
“Act”)
and
related
Indiana
and
Wisconsin
statutes.
See,
18
U.S.C. § 2511(a); Wisc. Stat. Ann. § 968.31; Ind. Code Ann.
§ 35-33.5-5-4.
The differences between these statutes are not
relevant for purposes of deciding this Motion because consent is
the key issue in this case and each statute includes consent as
a defense.
Thus, for ease of reference, the Court will refer to
and rely on only the relevant federal law.
The
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
§ 2510(4).
through
the
use
of
any
.
.
.
device.”
The Act also creates a private cause of action for
“any person whose . . . communication is intercepted.”
§ 2520(a).
Id.
Id.
The law provides for stiff penalties; it allows for
statutory damages as well as “punitive damages in appropriate
cases.”
Id. § 2520(b).
Although the Act is broadly written, there is a catch.
An
interception does not violate the Act “where one of the parties
- 4 -
to the communication has given prior consent.”
Id. § 2511(d).
The parties in this case have spilled much ink in trying to
paint
the
recording
system
at
issue
as
either
nefarious
(according to Burrow) or innocent (according to Sybaris), but
the Act does not impose any intent requirement.
Instead, it
punishes an interceptor for recording a call for any purpose,
unless one party to the call consented.
With that background in mind, the Court will consider each
of
Rule
Burrow’s
23’s
requirements
proposed
Rule 23(b)(3)’s
because
those
disagreement.
in
class.
The
Court
and
superiority
constitute
Court
whether
The
predominance
issues
determining
will
the
then
will
bulk
move
of
on
to
to
certify
start
with
requirements
the
parties’
Rule
23(a)’s
requirements, if necessary.
A.
Predominance and Superiority under Rule 23(b)(3)
When seeking to certify a class, plaintiffs must satisfy
one of Rule 23(b)’s three alternatives.
Messner, 669 F.3d at
811.
Rule
Burrow
seeks
certification
under
23(b)(3),
which
requires that “questions of law or fact common to class members
predominate
over
any
questions
affecting
only
individual
members, and that a class action is superior to other available
methods
for
controversy.”
fairly
and
efficiently
adjudicating
the
The Court will discuss each requirement in turn.
- 5 -
1.
Predominance
The predominance inquiry under Rule 23(b)(3) “‘trains on
the legal or factual questions that qualify each class member’s
case
as
a
genuine
controversy,’
with
the
purpose
being
to
determine whether a proposed class is ‘sufficiently cohesive to
warrant adjudication by representation.’”
Messner, 669 F.3d at
814 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623
(1997)).
Predominance is similar to Rule 23(a)’s typicality and
commonality requirements, but “the predominance criterion is far
more demanding.”
Generally,
questions
Id. (internal quotation marks omitted).
predominance
represent
a
is
satisfied
significant
aspect
when
of
“‘common
[a]
case
and . . . can be resolved for all members of [a] class in a
single
adjudication.’”
Id.
(quoting
7AA
Wright
and
Federal Practice & Procedure § 1778 (3d ed. 2011)).
Miller,
In other
words, “common questions can predominate if a common nucleus of
operative facts and issues underlies the claims brought by the
proposed class.”
presence
of
Id. (internal quotation marks omitted).
some
individual
questions
is
not
fatal,
The
but
individual questions cannot predominate over the common ones.
Id.
to
To determine if a question is common, the Court must look
the
evidence
necessary
to
answer
that
question;
if
“the
members of a proposed class will need to present evidence that
varies from member to member” to answer the question, then the
- 6 -
question is an individual one.
omitted).
Id. (internal quotation marks
Conversely, “if the same evidence will suffice for
each member” to answer the question at issue, then the question
is common.
Id.
“Analysis of predominance under Rule 23(b)(3) ‘begins, of
course, with the elements of the underlying cause of action.’”
Id. (quoting Erica P. John Fund, Inc. v. Halliburton Co., 131
S.Ct. 2179, 2184 (2011)).
The Wiretap Act is a broad statute
meant to protect privacy fiercely.
See, Watkins v. L.M. Berry &
Co., 704 F.2d 577, 581 (11th Cir. 1983) (stating that the Act
“expresses a strong purpose to protect individual privacy by
strictly
limiting
the
occasions
lawfully take place”).
fairly
simple;
Burrow
on
which
interception
may
Stating a claim under the Act is thus
must
intercepted phone calls.
prove
that
Sybaris
18 U.S.C. § 2511(1)(b).
intentionally
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).
intended to record calls.
All that is required is that Sybaris
See, id.
There is no dispute that Sybaris intended to record phone
calls and in fact did record phone calls.
argument on the consent exception.
Sybaris rests its
Consent is an affirmative
defense that Sybaris bears the burden of proving.
- 7 -
Valentine v.
WideOpen W. Finance, LLC, 288 F.R.D. 407, 413 (N.D. Ill. 2012)
(citing
Doe
v.
Smith,
429
F.3d
706,
706
(7th
Cir.
2005)).
Sybaris argues that the consent exception should be construed
broadly, based largely on the Second Circuit’s opinion in Amen
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 United States v.
Amen, 831 F.2d 373, 378 (2d Cir. 1987)).
According to Sybaris,
consent can be inferred because Sybaris employees knew generally
that calls made to and from the reservations desks were being
recorded.
Sybaris’s
based
on
Amen
argument
for
contains
a
a
broad
glaring,
construction
fatal
flaw:
of
consent
the
Seventh
Circuit rejected Amen outright in United States v. Daniels, 902
F.2d 1238 (7th Cir. 1990).
In that case, a defendant sought to
suppress evidence the FBI obtained from eavesdropping on the
defendant’s
calls
from
considered
whether
the
when
a
section
in
the
prison.
Id.
defendant’s
Code
of
at
1245.
consent
Federal
might
The
court
be
inferred
Regulations
informed
inmates their calls may be monitored and the defendant signed a
form indicating that he “underst[ood] that telephone calls [he]
made from institution telephones may be monitored and recorded.”
Id. (internal quotation marks omitted).
- 8 -
The court found that
these circumstances did not indicate consent because “knowledge
and consent are not synonyms.”
Id.
“[t]aking
same
a
risk
is
not
the
According to the court,
as
consequences if the risk materializes.”
consenting
Id.
to
the
For example, “[a]
person who walks by himself at night in a dangerous neighborhood
takes a risk of being robbed; he does not consent to being
robbed.”
Id.
The court found that this type of broad consent
argument is “the kind of argument that makes lawyers figures of
fun to the lay community, and although a respected sister court
has accepted it [in Amen], we place no weight on it.”
(citation omitted).
Id.
Because the Seventh Circuit has rejected
Amen’s broad construction of consent, this Court cannot give
weight to Sybaris’s broad consent arguments.
This
does
not
inferred at all.
but
in
States
either
v.
mean,
however,
that
consent
cannot
be
Rather, “[c]onsent may be express or implied,
case,
there
Corona-Chavez,
must
328
be
F.3d
actual
974,
978
consent.”
(8th
Cir.
United
2003).
Sybaris did not seek and did not obtain express consent until
after this lawsuit started.
received
implied
consent
Instead, Sybaris argues that it
when
it
generally
informed
its
employees of the new ShorTel system and those employees chose to
continue
working
for
Sybaris
by
recorded lines.
- 9 -
taking
phone
calls
on
the
The majority of the parties’ briefing on the consent issue
goes to the merits of Sybaris’s consent defense, but that is not
the
issue
before
individualized
the
issues
common issues.
Court.
of
The
consent
issue
threaten
is
any
overwhelm
to
whether
the
In this case, the common questions include (1)
whether Sybaris had a policy of recording all or a substantial
portion of phone calls to and from reservations desks and (2)
whether the phone system informed potential class members that
their calls were in fact being recorded.
Sybaris
claims
that
the
individual
issues
related
to
employee consent preclude class certification, but the evidence
Sybaris cites is, in fact, common to the class.
dispute
that,
prior
to
this
lawsuit,
Sybaris
individual, express consent from any employee.
argues
that
implied
knowledge
among
recorded,
as
its
consent
can
employees
evidenced
by
be
that
the
Sybaris submitted with its brief.
various
did
not
obtain
Instead, Sybaris
inferred
their
There is no
by
calls
the
common
were
being
employee
affidavits
This may be true, but the
affidavits and testimony that Sybaris relies on would be the
same
evidence
individually.
it
would
introduce
if
class
members
proceeded
This is especially true for non-employee class
members, because Sybaris has not put forth any evidence that it
even attempted to obtain consent — implied or otherwise — from
customers calling in to the reservations desks.
- 10 -
For these non-
employee class members, Sybaris would also be relying on the
same affidavits and testimony that it currently relies upon in
arguing that the employee a customer spoke with consented to the
recording.
Without this common evidence of general knowledge,
Sybaris would have virtually no defense to non-employee class
members’ claims.
And for employee class members like Burrow who
would claim that they gave no consent, Sybaris would be using
the same testimony from employees who allegedly did consent to
impeach these employees’ claims.
All of this this shows that
the evidence related to Sybaris’s consent defense is common to
the class, and just because a class might “go down in flames on
the
merits”
does
certification.
not
mean
that
a
court
should
refuse
See, Schleicher v. Wendt, 618 F.3d 679, 685 (7th
Cir. 2010).
Moreover, the eighteen individual affidavits that Sybaris
submits in support of its consent defense, which are the subject
of Burrow’s Motion for Reconsideration, account for less than
one-third of all the potential employee class members.
even
assuming
that
those
affidavits
conclusively
Thus,
establish
consent for those specific class members, the Court cannot deny
class
certification
as
to
the
other
two-thirds
of
potential
employee class members who might have given no form of consent.
Of
course,
Sybaris
“will
not
be
precluded
from
presenting
admissible evidence of individual consent if and when individual
- 11 -
class
members
are
permitted
to
present
claims,”
but
those
individual issues do not at this point appear to predominate
over the common ones.
See, Steven Ades & Hart Woolery v. Omni
Hotels
No.
Mgmt.
Corp.,
2:13-cv-02468-CAS(MANx),
2014
WL
4627271, at * 12 (C.D. Cal. Sept. 8, 2014).
The Court finds that common issues, both as to Burrow’s
claim and as to Sybaris’s affirmative defense, predominate over
any individualized issues.
If it later appears that individual
issues will in fact predominate, Sybaris may move to modify or
decertify the class at that time.
See, Carnegie v. Household
Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004).
At this point,
however, Burrow has satisfied predominance.
2.
Superiority
In order to certify a class under Rule 23(b)(3), the Court
must also find that class treatment is superior to other ways of
resolving
the
dispute.
Rule
23(b)(3)
lists
the
following
factors the Court should consider in deciding superiority:
(A) the class
controlling the
actions;
members’ interests in
prosecution or defense
individually
of separate
(B) the extent and nature of any litigation concerning
the controversy already begun by or against class
members;
(C)
the
desirability
or
undesirability
concentrating the litigation of the claims in
particular forum; and
- 12 -
of
the
(D) the
action.
Sybaris
likely
does
difficulties
not
present
in
a
managing
separate
a
class
argument
against
superiority aside from its predominance argument, and for good
reason.
This case involves the application of similar wiretap
statutes to a single system of recording phone calls.
The need
for class members to have individualized control is therefore
minimal.
And because the claims and defenses will be nearly
identical, concentrating this case into a single forum is more
desirable than thousands of cases all hearing the same claim
involving the same recording system.
Although there are some difficulties in managing a class
this size, those difficulties are not insurmountable in light of
the simple nature and limited scope of the claims.
This is
especially true because Burrow only claims statutory damages,
which removes the thorny issue of measuring damages on a classwide basis.
Thus, the Court finds superiority satisfied.
B.
Rule 23(a) Requirements
Before the Court can certify a class, Burrow must establish
numerosity,
23(a).
commonality,
Burrow
“sufficiently
must
definite
typicality,
also
that
and
demonstrate
its
members
adequacy
that
are
the
under
class
Rule
is
ascertainable.”
Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir.
2012).
The Court will address each requirement separately.
- 13 -
1.
Burrow
does
not
Ascertainability
need
to
ascertain
the
identity
class member to achieve class certification.
only
demonstrate
that
such
members
are
of
each
Rather, he need
“ascertainable,
with
class members to be identified during a claims administration
process if the class prevails.”
Line,
Inc.,
302
F.R.D.
240,
quotation marks omitted).
members
can
be
Birchmeier v. Caribbean Cruise
245
(N.D.
Ill.
2014)
(internal
“A class is identifiable if class
ascertained
based
on
objective
criteria.”
Pawelczak v. Fin. Recovery Servs., Inc., 286 F.R.D. 381, 385
(N.D. Ill. 2012) (internal quotation marks omitted).
As a preliminary matter, the class definition in this case
seems on its face sufficiently definite.
It defines a narrow
scope of members whose calls were recorded at specific locations
during a short period of time.
Also, the definition does not
pose ascertainability problems that other courts have found to
preclude class certification.
Membership in the proposed class,
for example, is not “contingent on the state of mind of the
prospective
class
members.”
Alliance
to
End
Rochford, 565 F.2d 975, 978 (7th Cir. 1977).
Repression
v.
Thus, there is
nothing about the class definition itself that poses any problem
for identifying class members.
In addition to being facially sufficient, Burrow has set
forth
several
different
objective
- 14 -
ways
in
which
to
identify
class members.
Sybaris’ clubs are not traditional hotels; every
guest must be a “member” and pay an annual fee in order to stay
at
the
hotel,
and
identification
Sybaris
number.
assigns
Those
each
unique
member
numbers
a
can
unique
identify
customers who made reservations during the class period, and
Sybaris’s
phone
logs
along
with
those
customers’
own
phone
records can determine if they called in to Sybaris to make the
reservations.
Burrow has thus demonstrated an objective way to
ascertain class members.
Nevertheless, Sybaris does point out some potential issues
in identifying which class members have claims.
The ShoreTel
system was only able to record, at most, ten calls at a time,
but Sybaris had forty-six reservation lines during the class
period.
Thus, if more than ten lines were in use at any time,
the additional phone lines were not recorded, and because class
members’ claims necessarily depend on a call being recorded,
those callers would not qualify as class members.
Sybaris also
notes that some customers’ calls were not recorded because they
were answered by a manager, whose lines were not recorded at
all.
And,
due
to
a
system
upgrade,
Sybaris
no
longer
has
certain data that would demonstrate which calls were actually
recorded.
All of this indeed poses some issues for identifying class
members,
but
it
does
not
demonstrate
- 15 -
that
the
class
members
cannot possibly be ascertained based on objective data.
Rather,
it demonstrates that Sybaris might be able to disqualify some
class members at a later time by showing their calls were not
actually recorded.
And Sybaris admits that “[t]here is some
information concerning the calls which were recorded, but it is
not complete.”
Opp.”)
at
14,
objective
members.
(Def.’s Mem. in Opp. to Class Cert. (Def.’s
ECF
No.
criteria
64).
exist
to
Sybaris
identify
therefore
at
admits
least
some
that
class
Although Sybaris might be able to disqualify potential
class members by showing their phone calls were not actually
recorded, Sybaris would be doing so based on objective data.
Thus,
membership
(or
non-membership)
in
the
class
is
ascertainable.
2.
There
is
no
magic
Numerosity
number
of
claims
that
make
a
case
sufficiently numerous for class action purposes, but “a class of
more than 40 members is generally believed to be sufficiently
numerous for Rule 23 purposes.”
Ringswald v. Cnty. of DuPage,
196 F.R.D. 509, 512 (N.D. Ill. 2000).
Sybaris’s phone recording
system could record, at most, ten phone calls at any given time.
The class period spans approximately one year at each location,
which was continuously open during the entire class period.
The
parties have not presented any hard numbers showing exactly how
many
class
members
called
in
to
- 16 -
recorded
phone
lines,
but
Sybaris’s current IT employee confirmed in his deposition that
on a single day early in the class period the ShoreTel system
recorded over 300 calls.
Although the IT employee indicated
that this was during Sybaris’s busy time of the year, the Court
finds
that
this
information
suggests
that
the
number
of
potential plaintiffs is in the thousands, which is sufficiently
numerous for Rule 23(a) purposes.
Sybaris contends that this number is actually much lower
based on its consent argument, which the Court discussed above.
But for class certification purposes, the Court need not rule on
the merits of Sybaris’s consent defense.
If it turns out that
some (or all) employees gave actual consent to the recordings,
then the number of class members will be reduced or rendered
non-existant.
At this point, however, the number of potential
class members is quite large and therefore satisfies numerosity.
3.
Commonality
The parties spend little time on the commonality prong,
each
noting
predominance
standard.
finds
under
Rule
that
commonality
23(b)(3),
which
is
See, Messner, 669 F.3d at 814.
that
common
Rule 23(b)(3)
satisfied.
correctly
questions
standard,
the
predominate
Court
also
overlaps
a
more
with
stringent
Because the Court
under
the
finds
stricter
commonality
This case involves a single system of recording that
allegedly violates federal and state wiretap laws.
- 17 -
Sybaris’s
defense is consent, which Sybaris itself admits is essentially
identical
under
the
federal
and
state
laws
at
issue.
Commonality is therefore satisfied.
4.
Typicality and Adequacy
Sybaris argues that Burrow’s claim is not typical and that
he cannot be an adequate class representative for two reasons.
First,
Sybaris
argues
because
he
is
an
members
consists
that
Burrow’s
employee,
of
while
claims
the
customers.
are
larger
This
is
not
group
so,
typical
of
class
according
to
Sybaris, because “a unique consent defense” applies to employees
that does not apply to customers.
merit,
employee
however,
class
because
members.
the
This argument is without
defense
Only
one
is
party
not
unique
need
to
consent
the
to
a
recording in order to defeat both parties’ claims, 18 U.S.C.
§ 2511(2)(d), and Sybaris has presented no evidence whatsoever
that any customers consented to the recordings.
Thus, Sybaris’s
only defense — to both its customers’ and its employees’ claims
— is that the employees all impliedly consented.
the defense is not unique at all.
Simply put,
Thus, Burrow’s claim that his
calls were recorded in violation of the Act is typical of the
entire class’s claim.
Second, Sybaris argues that Burrow cannot be an adequate
representative
asserts
that
because
Burrow
of
a
conflict
“partook
in
- 18 -
the
of
interest.
purported
Sybaris
surveillance
program by listening to recorded calls during his management
training.”
(Def.’s Opp. at 34, ECF No. 64).
Because Burrow
listened to some of the recorded calls, Sybaris asserts that his
interests are adverse to other class members.
Sybaris
is
correct
that
a
person
cannot
adequately
represent a class when the person engaged in the very wrongdoing
alleged in the Complaint.
824
(7th
Cir.
2011)
Randall v. Rolls-Royce, 637 F.3d 818,
(finding
that
a
potential
class
representative in a sex discrimination case could not represent
the class when she participated in decisions that, under her own
theory of the case, were discriminatory).
engage in the wrongdoing alleged.
punishes
the
interception
of
a
But Burrow did not
As discussed above, the Act
communication.
There
is
no
evidence that Burrow recorded any calls on his own or had any
control over Sybaris’s call recording.
squarely with Sybaris.
That decision rested
That Burrow listened to what Sybaris had
previously intercepted does not transform Burrow into one who
did the intercepting.
It would be odd indeed if a defendant
could escape liability for intercepting calls simply by playing
those calls for potential class members to listen to.
The claim
in this case is that Sybaris recorded phone calls in violation
of the Act, and Burrow is one such person whose calls were
recorded.
Burrow therefore appears to be a typical and adequate
class representative.
- 19 -
IV.
For
reasons
stated
CONCLUSION
herein,
Burrow’s
Certification [ECF No. 57] is granted.
is
certified
and
Burrow
is
Motion
for
Class
The class defined herein
appointed
class
representative.
Burrow’s retained counsel, Krislov & Associates, Ltd., is hereby
appointed
as
class
counsel.
Because
class
certification
is
appropriate even considering the eighteen (18) affidavits Burrow
sought
to
strike,
Burrow’s
Motion
for
Reconsideration
[ECF
No. 70] is denied as moot.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:4/24/2015
- 20 -
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