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

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