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Burrow v. Sybaris Clubs International, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 24, 2015

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



Before the Court are Plaintiff Robert Burrow's Motions for (1) Class Certification [ECF No. 57], and (2) Reconsideration of the Court's February 18, 2015 Order denying Burrow's Motion to Strike Defendant Sybaris Clubs International, Inc.'s response to the class certification motion [ECF No. 70]. For the reasons stated herein, the Motion for Class Certification is granted and the Motion for Reconsideration is denied as moot.


A good portion of the facts in this case are undisputed. Burrow used to work at the Reservations Desk for one of Sybaris's five "romantic getaway" resorts. The reservations desks at each of Sybaris's locations are open twenty-four hours a day, including weekends and holidays. In November 2011, Sybaris purchased a telephone system called "ShoreTel, " which allowed Sybaris to record the phone calls made to and from phones at the various reservations desks. Burrow argues that Sybaris recorded all inbound and outbound phone calls from the reservations desks without anyone's consent in violation of state and federal wiretap laws. Because Sybaris did not install the ShoreTel system at the same time for each location, Burrow seeks to represent a class of plaintiffs defined as:

All persons who made a telephone call into or out of the reservation telephone lines at Sybaris' five locations between the following dates: (1) Downers Grove, Illinois between March 19, 2012, and April 11, 2013; (2) Northbrook, Illinois between May 11, 2012 and April 11, 2013; (3) Frankfort, Illinois between May 14, 2012 and April 11, 2013; (4) Mequon, Wisconsin between May 25, 2012 and April 11, 2013; and (5) Indianapolis, Indiana between June 15, 2012 and April 11, 2013.

Sybaris's primary argument is that it obtained consent from its employees to record their phone calls. Thus, according to Sybaris, no class plaintiff has a viable claim because, under the Federal Wiretap Act and related state laws, one party's consent to recording is a defense to either party's claim. The central issue for class certification purposes is consent.


"To be certified, a proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a), as well as one of the three alternatives in Rule 23(b)." Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Rule 23(a) requires Burrow to prove "numerosity, typicality, commonality, and adequacy of representation." Id. Burrow seeks certification under Rule 23(b)(3), which also requires him to prove that: (1) the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual members; and (2) a class action is superior to other available methods of resolving the controversy. Id.

Burrow bears the burden of satisfying Rule 23, which is not "a mere pleading standard.'" Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551-52 (2011)). To meet this burden, Burrow must "satisfy through evidentiary proof" each of Rule 23's elements. Id. In deciding a class certification motion, the Court must conduct a "rigorous analysis" before it can determine whether Burrow has satisfied Rule 23's requirements. Id. (internal quotation marks omitted). This means that the Court might need to resolve issues that also bear on the merits of the claim, but only if those issues overlap with class certification issues. Id.

Despite the need for rigorous analysis, however, "the court should not turn the class certification proceedings into a dress rehearsal for a trial on the merits." Messner, 669 F.3d at 811. Instead, the Court need only consider the evidence submitted by the parties and determine whether Burrow has proven each of Rule 23's elements by a preponderance of the evidence. Id.


Burrow's claims arise under the Federal Wiretap Act (the "Act") and related Indiana and Wisconsin statutes. See, 18 U.S.C. § 2511(a); Wisc. Stat. Ann. § 968.31; Ind. Code Ann. § 35-33.5-5-4. The differences between these statutes are not relevant for purposes of deciding this Motion because consent is the key issue in this case and each statute includes consent as a defense. Thus, for ease of reference, the Court will refer to and rely on only the relevant federal law.

The Act punishes "any person who... intentionally intercepts [or] endeavors to intercept... any wire, oral, or electronic communication." 18 U.S.C. § 2511(a). "Intercept" simply means the "acquisition of the contents of any... communications through the use of any... device." Id. § 2510(4). The Act also creates a private cause of action for "any person whose... communication is intercepted." Id. § 2520(a). The law provides for stiff penalties; it allows for statutory damages as well as "punitive damages in appropriate cases." Id. § 2520(b).

Although the Act is broadly written, there is a catch. An interception does not violate the Act "where one of the parties to the communication has given prior consent." Id. § 2511(d). The parties in this case have spilled much ink in trying to paint the recording system at issue as either nefarious (according to Burrow) or innocent (according to Sybaris), but the Act does not impose any intent requirement. Instead, it punishes an interceptor for recording a call for any purpose, unless one party to the call consented.

With that background in mind, the Court will consider each of Rule 23's requirements in determining whether to certify Burrow's proposed class. The Court will start with Rule 23(b)(3)'s predominance and superiority requirements because those issues constitute the bulk of the parties' ...

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