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Burrow v. Sybaris Clubs International, Inc.

United States District Court, Seventh Circuit

November 8, 2013

ROBERT C. BURROW, on Behalf of Himself and Others Similarly Situated, Plaintiffs,



Before the Court is the Defendants' Motion to Dismiss. For the reasons stated herein, the Motion is denied.


Plaintiff Robert C. Burrow (hereinafter, "Burrow") brought a class-action lawsuit against Defendants Sybaris Clubs International, Inc. ("Sybaris"), Randall D. Repke, and Charlene Farrell (the "Defendants") on March 28, 2013. As alleged in the Complaint, Sybaris is a chain of five motel suites that cater to customers looking for a romantic paradise. Sybaris employed Burrow as a reservation desk clerk from March 2004 through May 2007 and from April 2008 through May 2013. Burrow's position at Sybaris required him to take calls from the reservation line as well as check in guests. Given the nature of Sybaris' business, those phone calls often included discussion of intimate, personal, or confidential information.

In 2011, Defendants installed a new telephone system, known as a ShoreTel Sky System. The new system routed all incoming calls through a central processer and allowed Sybaris management and other employees to listen live to customer and employee conversations. In addition, the system recorded all calls made by or to the reservation desk at each Sybaris location. The recordings were saved on computer servers and could be accessed through a web interface.

Sybaris did not inform its employees of the new recording telephone system, and most found out about it through speaking with managers or work gossip. Burrow first learned of the new phone system at least a month after it was installed. He alleges that, during that time, he received personal and work-related phone calls while he was working the reservation desk.

The Complaint alleges that Defendants invaded his right of seclusion and violated the Federal Wiretap Act, the Illinois Eavesdropping Statute, the Indiana Wiretap Act, and the Wisconsin Wiretap Act. Burrow alleges that his rights of privacy and the rights of other callers or employees who made phone calls from work were violated when Sybaris installed the new recording system and did not inform employees or customers. Defendants responded by moving to dismiss under Rule 12(b)(6).


A Motion to Dismiss under Rule 12(b)(6) requires the Court to analyze the legal sufficiency of the complaint, not the factual merits of the case. Autry v. Nw. Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). The complaint must do more than recite the elements of a violation; it must plead with sufficient particularity so that the right to relief is more than a mere conjecture. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).


A. The Federal Wiretap Act - Count I

Plaintiff claims that Defendants violated the Federal Wiretap Act by using Sybaris' telephone system to record Burrow's oral communications without his knowledge or consent. The Federal Wiretap Act imposes liability on anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18. U.S.C. § 2510(4).

Defendants assert that their behavior is protected by what is known as the "business extension exception." The exception is available if Defendants can establish that (1) the recording device used was a "telephone or telegraph instrument" furnished by a "provider of wire or electronic communication service in the ordinary course of its business" (the "device" prong); and (2) Defendants used the device "in the ordinary course of [their] business" (the "ordinary course of business" prong). 18 U.S.C. § 2510(5)(a)(I).

A device is a "telephone or telegraph instrument" if it furthers the use of or enhances the telecommunications system functionally. Sanders v. Robert Bosch Corp., 38 F.3d 736, 740-41 (4th Cir. 1994). The exception does not apply to "apparatuses capable of tapping a telephone or wire or otherwise seizing a communication, " because the exception is designed to "exclude the mere use of an ordinary telephone in its ...

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