invasion of privacy

On Wednesday, a federal judge in the Central District of California dismissed Humana Pharmacy Inc.’s motion to dismiss a putative class action suit alleging the company illegally recorded telephone calls with customers, finding that the California Invasion of Privacy Act (“CIPA”) does not exempt quality assurance recordings.

In its motion to dismiss, Humana argued that CIPA exempts “service observing,” or a business’s recording of calls between its employees and customers for quality assurance purposes.  Judge Josephine Staton Tucker rejected Humana’s interpretation of the statute and further found that plaintiff’s complaint did not allege that Humana recorded the call for service observing purposes, refusing to read such purpose into the allegations.

The court also rejected Humana’s contention that plaintiff’s complaint failed to allege that the company did not provide proper notice to him at the outset that the call was being recorded. The court held that plaintiff’s allegation that he was not warned “at any point during the telephone conversation” was sufficient at the pleadings stage, but acknowledged that the issue could be raised again in a motion for summary judgment. Continue Reading Humana’s Quality Assurance Calls Not Exempted From CIPA

The Ninth Circuit revived a putative class action alleging that ADT Security Services violated the California Invasion of Privacy Act (“CIPA”) by recording the plaintiff’s phone call to the company without consent, remanding the case to allow the plaintiff to file an amended complaint. In a published opinion, the panel wrote that while it agreed with the district court that plaintiff’s complaint failed to state a plausible claim upon which relief could be granted, it would nevertheless remand the case in order to give the plaintiff an opportunity to allege that he reasonably expected that his call was confidential. “In an abundance — perhaps an overabundance — of caution, we remand this case to the district court for it to consider allowing the plaintiff to amend his complaint in a manner that would satisfy federal pleading standards,” the opinion said.

John Faulkner brought his putative class action in California state court in February 2011, alleging that ADT recorded his phone conversation with a company representative without his consent in violation of CIPA, Cal. Penal Code § 632. The plaintiff specifically alleges that he called ADT in March 2010 to dispute a charge the company assessed, and that, when he was transferred to the company’s technical line, he heard periodic beeping sounds during his conversation. When he inquired about the sounds, he was told that the conversation was being recorded, according to his complaint.

A judge in the Northern District of California dismissed the case in May 2011, holding that Faulkner’s conversation was not “confidential” because he had no objectively reasonable expectation that the call would not be overheard or recorded, and that he had failed to allege circumstances that would support an expectation of privacy in his call. Continue Reading Ninth Circuit Revives Privacy Class Action Over ADT Call Recordings

A federal district court in New Jersey ruled this week that an employer might have invaded an employee’s common-law privacy rights by coercing a co-worker into giving the employer access to the employee’s Facebook profile.

The plaintiff, a nurse and paramedic employed by a non-profit hospital service corporation, alleges that her supervisor forced a co-worker who was one of the plaintiff’s Facebook friends to log into Facebook in front of the supervisor so the supervisor could see the plaintiff’s postings. The complaint alleges the supervisor viewed and copied several of the plaintiff’s posts, including a comment implying that paramedics should not have saved a man who shot and killed a guard at the United States Holocaust Memorial Museum in Washington, D.C. The complaint alleges that the employer sent letters about the post to state regulators in a “malicious” attempt to damage the plaintiff’s reputation and employment opportunities. The defendants asked the court to dismiss the plaintiff’s common law invasion of privacy claim and her claim under New Jersey’s Wiretapping and Electronic Surveillance Control Act.Continue Reading N.J. Federal Court: Privacy Claim Based on Coerced Access to Employee’s Facebook Posts May Proceed