Metropolitan News-Enterprise


Thursday, July 25 2019


Page 3


Ninth Circuit:

Class Can’t Be Certified Without Finding That Plaintiff Is Member of That Class


By a MetNews Staff Writer


The  Ninth U.S. Circuit Court of Appeals has vacated a order of the District Court certifying a class in an action based on a company’s allegedly unlawful recording of telephone conversations because the judge did not make a finding that the named plaintiff had not heard a recorded warning that the call would be monitored.

Certified as a class in an action against Educational Credit Management Corporation (“ECMC”) were:

“All individuals who, between August 2, 2014, to March 31, 2015, inclusive (the Class Period), participated in an inbound telephone conversation with a live representative of ECMC that was: (1) placed to an ECMC phone line that used the non-mandatory message setting for its admonition that the call is being recorded; (2) made from a telephone number that includes a California area code; (3) transmitted via cellular telephone; and (4) recorded without the caller’s consent.”

The action was brought under California’s Invasion of Privacy Act.

District Court’s Error

A three-judge panel, in ordering decertification of the class, said in a memorandum opinion filed Tuesday that a class action requires a named plaintiff who is a member of the class. District Court Judge Cynthia A. Bashant of the Southern District of California erred in certifying the class, the opinion says, without first determining that A.J. Reyes, who brought the action, had not consented to his conversation being recorded.

ECMC insists that callers automatically hear this message when a call is picked up:

“Thank you for calling ECMC. This call is being recorded.”

Reyes insisted in a declaration that when he twice phoned ECMC, no such recording was played.

California Law

The opinion sets forth that if the District Court concludes that Reyes “heard the warning that the call was being recorded,” then, under California law, his staying on the line and talking with a live agent “plainly would constitute consent to recording.”

The opinion declares:

“Consequently, it is not clear that Reyes is a member of the class he seeks to represent or has a CIPA claim at all. We therefore vacate and remand so the district court may determine whether Reyes has met his burden of proving that he did not hear the recording warning. If he did hear the warning, he cannot be a member of the class as currently defined and the lawsuit should be dismissed.”

The panel was comprised of Circuit Judges Michelle T. Friedland and Milan D. Smith Jr., joined by District Court Judge Carol Bagley Amon of the Eastern District of New York, sitting by designation.

The case is Reyes v. Educational Credit Management Corporation, 17-56930.


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