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Browning v. AT&T Corp.

December 11, 2009


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Plaintiff John Browning ("Browning") brought suit against defendants CollectCo.*fn1, Inc. d/b/a Collection Company of America ("CCA"), and AT&T, Inc. ("AT&T"), in connection with AT&T's efforts to collect a past-due amount of $139.07 on Browning's phone bill. Browning alleges that in April 2008, AT&T placed his account with CCA, a collection agency, and that although he paid the bill in May 2008, CCA persisted in its efforts to collect the debt. According to Browning, CCA phoned an undetermined number of his business contacts and acquaintances in seeking payment of the bill. He also claims that CCA contacted his friend, Milton Cole ("Cole"), divulging that Browning's phone bill was past due, disclosing Browning's account number, and asking Cole to pay the debt.

Browning's complaint asserts six causes of action: violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1691, et seq. (Count I); violation of the Illinois Collection Agency Act ("ICAA"), 225 ILCS 425/1, et seq. (Count II); intrusion upon seclusion (Count III); public disclosure of private facts (Count IV); violation of the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS 505/1, et seq. (Count V); and defamation per quod (Count VI). AT&T has moved to dismiss Counts III through V, which are the only counts in which it is named as a defendant. For the reasons the follow, AT&T's motion is granted in part and denied in part.

I. Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint, not its merits. See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In resolving a defendant's Rule 12(b)(6) motion, I must accept all well-pleaded allegations in the complaint as true, and must draw all reasonable inferences in the plaintiff's favor. See, e.g., McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006).

II. Discussion

A. Intrusion Upon Seclusion

Count III of Browning's complaint alleges a claim for "intrusion upon seclusion," one of four separate torts based on the invasion of a plaintiff's privacy. See, e.g., Duncan v. Peterson, 835 N.E.2d 411, 422 (Ill. App. Ct. 2005) ("There are four invasion of privacy torts: (1) intrusion upon seclusion of another; (2) appropriation of a name or likeness of another; (3) publication given to private life; and (4) publicity placing another person in false light."). To make out a claim for intrusion upon seclusion, a plaintiff must show that: "(1) the defendant committed an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and suffering." Busse v. Motorola, Inc., 813 N.E.2d 1013, 1017 (Ill. App. Ct. 2004); see also Narducci v. Vill. of Bellwood, 444 F. Supp. 2d 924, 938 (N.D. Ill. 2006). AT&T argues that Browning's complaint fails to satisfy the first of these elements because the alleged "intrusion" into his privacy was not "unauthorized." I agree.

In support of its argument, AT&T cites the Electronic Communications Privacy Act, 18 U.S.C. § 2511 ("§ 2511").*fn2 In relevant part, the Act provides:

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service[.]

18 U.S.C. § 2511(2)(a)(i) (emphasis added).

Essentially, AT&T contends that § 2511 allows communications providers, such as itself, to use and disclose customers' records in seeking to protect its rights and/or property. AT&T claims that the past-due amount owed by Browning constitutes its property. As a result, AT&T claims that it was justified under § 2511 in searching and compiling Browning's billing records in trying to collect payment.

AT&T's argument draws substantial support from two decisions of the Illinois Court of Appeals. The first of these, Schmidt v. Ameritech Illinois, 768 N.E.2d 303 (Ill. App. Ct. 2002), involved a plaintiff who worked for Ameritech as a customer service technician. Id. at 306. He claimed to have suffered a knee injury in June 1994, and went on disability leave until August 1994. Id. Prior to his alleged injury, he had received approval to take a fishing vacation from July 15 through July 24. Id. The plaintiff's superiors reminded him that under Ameritech's disability policy, he was not permitted to take a vacation while on disability leave. Id. at 306-07. He and his wife nevertheless attempted to take the vacation surreptitiously. Id. at 307. The plaintiff's supervisor became suspicious and placed him under investigation. Id. In addition to staking out the plaintiff's home, Ameritech also checked certain of the plaintiff's phone records in an attempt to prove his whereabouts during the week in question. Id. Based on the records, Ameritech ascertained that the plaintiff had indeed taken a vacation at a resort in Canada. Id. at 308. The plaintiff brought an intrusion-upon-seclusion claim against Ameritech, alleging that the company had improperly reviewed his phone records. Id. at 309.

Although the jury found in the plaintiff's favor, the verdict was overturned on appeal. Ameritech argued, among other things, that its review of the plaintiff's records was authorized by § 2511(2)(a)(i). The court agreed, holding that "Ameritech's conduct was a necessary incident to the protection of its rights or property," and that "'rights or property' includes Ameritech's monetary resources." Id. at 314. The court explained:

The result of engaging in such a practice is that Ameritech unnecessarily would be depleting its monetary resources to fund an employee's vacation twice over, if and when that employee then decides to take an "official" vacation and has that vacation time deducted from his or her account. In other words, Ameritech essentially would be funding the equivalent of two employees' vacations while only receiving the benefit of one employee's work. Because Ameritech's investigation into an unnecessary depletion of its monetary resources necessarily involves a protection of its rights and property, especially in light of [the plaintiff's] admittedly deceitful actions, we find that Ameritech's conduct was authorized and protected specifically by this statute. Accordingly, because plaintiffs cannot demonstrate that Ameritech's conduct was unauthorized, i.e., the first element of the tort, we find that the jury's verdict in favor of the plaintiffs was against the manifest weight of the evidence.

Id. at 315.

The next year, the Illinois Court of Appeals decided Morris v. Ameritech Illinois, 785 N.E.2d 62 (Ill. App. Ct. 2003), another case involving the application of § 2511 in the context of an invasion-of-privacy claim. There, Ameritech suspected that the plaintiff, who worked for the company as an installer, was not putting in a full day's work. Id. at 64. After placing him under surveillance, the plaintiff's truck was spotted in the driveway of his home on several occasions during working hours. Id. In addition, the plaintiff's supervisor reviewed his phone records, which indicated that the plaintiff had made calls from his home on several occasions during business hours. Id. When the plaintiff later sued Ameritech for invasion of privacy, the appellate court upheld the lower court's dismissal of his claim, noting that "Ameritech has a property interest in not paying its employees, like [plaintiff], for work at times when the employees are at home and not working," id. at 70, and that "under Schmidt, federal law authorized Ameritech to use its records, including MUD [message unit detail] records, to protect its rights and property," id.

To be sure, neither Schmidt nor Morris is binding here. See, e.g., Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1301 (7th Cir. 1995) ("When determining issues under Illinois law, [federal courts] apply the law that would be applied in this context by the Illinois Supreme Court . . . . We are obliged to consider the holdings of state appellate courts, but are not bound to do so if we have good reasons for diverging from those decisions.") (citation omitted). Nevertheless, I find the reasoning in these cases to be persuasive. Just as ยง 2511 authorized Ameritech's inquiry into the plaintiff's phone records in Schmidt and Morris, it also authorized AT&T's use of Browning's records in this case. Here, as in Schmidt and Morris, AT&T used the information for the purpose of protecting its monetary resources. It is true that the statute authorizes the interception and disclosure of "communications." At first blush, Browning's ...

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