Busby v. Invoca, Inc.

Background

The plaintiffs alleged that Invoca recorded conversations between plaintiffs and DISH and DirecTV, even though Invoca was not a party to those conversations. The first amended complaint alleged that Invoca was a separate legal entity from DISH and DirecTV, that DISH and DirecTV were Invoca’s customers, and that Invoca claimed the right to use data from the recorded calls to market and improve its own services.

Claims and Analysis

For the first claim, under section 631(a) of the California Invasion of Privacy Act, the court held that the complaint plausibly alleged that Invoca was a third-party wiretapper. The court distinguished a situation in which a company records its own conversations, explaining that the plaintiffs instead plausibly alleged that Invoca secretly monitored conversations between the plaintiffs and DISH or DirecTV. The request to dismiss this claim was denied.

For the second claim, under section 632(a) of the California Invasion of Privacy Act, Invoca argued that the plaintiffs had not adequately pleaded a lack of consent or a reasonable expectation of privacy. The court disagreed. Although the complaint said DISH consumers were told calls would be monitored and recorded for quality assurance or training, and DirecTV consumers were told calls would be recorded for quality assurance, the court said those disclosures did not request or obtain consent for Invoca to record the calls in the alleged manner. The court also found that the plaintiffs plausibly alleged that the communications were confidential and that their expectation of privacy did not include Invoca. The request to dismiss this claim was denied.

The court also denied the request to dismiss the claim under section 637.5 of the California Invasion of Privacy Act. The plaintiffs plausibly alleged that Invoca was subject to section 637.5(h) and engaged in conduct violating section 637.5(a)(1).

Invoca argued that Casner could not assert both a Pennsylvania Wiretapping and Electronic Surveillance Control Act claim and a California Invasion of Privacy Act claim based on the same alleged conduct as part of a nationwide class. The court found that Invoca cited no controlling law requiring dismissal on that basis and said the issue was properly addressed through alternative pleading and later class-certification proceedings. The court also denied the request to dismiss Casner’s Pennsylvania claim because the same reasoning supporting the California section 632(a) claim allowed the Pennsylvania claim to proceed.

Other Requests and Disposition

The court denied Invoca’s request under Federal Rule of Civil Procedure 12(f) to strike the nationwide California Invasion of Privacy Act class claims, stating that Rule 12(f) was not the proper procedure for that request. The court said class-certification questions would be addressed under Rule 23 as appropriate.

The court also denied Invoca’s request to dismiss Casner’s California claim and the nationwide California claims for failure to plead a sufficient connection to California. The complaint alleged that Invoca had its principal place of business in San Francisco, California, and that Invoca recorded, transcribed, and analyzed the calls. The court found a plausible inference that the challenged conduct occurred in California, while noting that a factual challenge would need to be brought under a different Federal Rule of Civil Procedure on a more developed factual record.

Order

The court denied Invoca’s motion to dismiss. It also denied the request to strike the nationwide California class claims and denied the request to dismiss Casner’s California claim and the nationwide California claims for lack of a sufficient California connection. The order addressed the sufficiency of the pleadings and did not decide whether a class should be certified.