Metropolitan News-Enterprise


Friday, January 18, 2013


Page 3


Ninth Circuit Ruling Leaves Privacy Class Action Barely Alive


By a MetNews Staff Writer


A class action plaintiff who claimed that his right to privacy was violated when a home security company recorded his telephone call failed to state a cause of action under the Federal Rules of Civil Procedure, the Ninth Circuit Court of Appeals held yesterday.

Expressing doubt that the plaintiff had an objectively reasonable expectation that his conversation with the security company was not being recorded, a unanimous panel nevertheless remanded the case so that the district court could consider allowing the plaintiff to amend his complaint so as to satisfy federal pleading standards.

John Faulkner, a California resident, brought a putative class action against ADT Security Services, Inc., ADT Security Systems, West, Inc., and Tyco International, Inc., in San Mateo Superior Court. In it he alleged that ADT recorded his telephone conversation with a customer service representative without his consent, in violation of California’s invasion of privacy law.

The case was later removed by the defendants to the U.S. District Court for the Northern District of California on diversity grounds.

The complaint alleged that Faulkner called ADT to dispute a charge and was transferred to technical support. He said that during the call he began hearing periodic “beeping” sounds.

When he asked about the sounds, he alleged, the representative told him the conversation was being recorded and, in a subsequent call to customer service, was informed that it was the company’s policy to record telephone calls and that he could end the call if he did not wish to be recorded.

Faulkner filed suit in state court and the defendants removed the case to federal court based on diversity and moved to dismiss the complaint based on Federal Rule of Civil Procedure 12(b)(6). Judge Jeffrey S. White granted the motion, on the basis that Faulkner’s conversation was not a confidential communication because he had “no objectively reasonable expectation that his telephone conversation with ADT would not be overheard or recorded,” the standard established by the California Supreme Court.

Senior Judge Robert D. Sack of the Second Circuit, sitting by designation, wrote the panel opinion. He said the plaintiff’s “threadbare” allegation that that his conversation was “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined thereto,” did not allege facts that would lead to the plausible inference that he had an objectively reasonable expectation that he would not be recorded.

He explained:

“Although circumstances may arise under which the nature of the relationship or the character of the communications between a customer and a home security company could plausibly constitute a confidential communication under the California statute… too little is asserted in the complaint about the particular relationship between the parties, and the particular circumstances of the call, to lead to [such a] conclusion.”

Sack concluded that although federal procedural rules apply to all actions in federal court and under them White properly granted the motion to dismiss, given that the case was removed from state court on diversity grounds, the panel was “in an abundance—perhaps an overabundance—of caution,” nevertheless remanding the case so that White could consider whether to allow the plaintiff to amend his complaint in a manner that would satisfy federal pleading standards.

Judges Ronald M. Gould and Milan D. Smith, Jr. concurred in the opinion.

The appeal was argued by Gretchen Carpenter of Strange & Carpenter in Los Angeles for the plaintiff and Philadelphia attorney Robert Hickok for the defendants.

The case is Faulkner v. ADT Security Services, Inc., 11-16233.


Copyright 2013, Metropolitan News Company