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Illinois Gas Company Facing Class Action Suit Over Service Charges May Be Blocked By Eavesdropping Act From Presenting Recorded Evidence

from the bad-laws-have-only-legally-dubious-uses dept

We've written a lot about the state of Illinois' infamous Eavesdropping Act, a law that has been routinely abused by Illinois law enforcement officers to prevent citizens from recording them while they work. After a long legal battle that nearly made its way to the Supreme Court, the courts found that the use of the law to prosecute citizens who record police officers was unconstitutional and the latest court to hear the state's arguments suggested the law be repealed altogether.

The law is still on the books at the moment (although LEOs can no longer use it against camera-wielding citizens), which may come in handy for the plaintiffs of a class action suit against an Illinois gas company. (h/t to Above the Law)

The lawsuit claims the gas company charged customers unnecessary fees to cover gas line leaks and repairs. According to an investigation that preceded the lawsuit, Nicor Gas collected nearly $26 million in 2009 while paying out only $600,000 in benefits. In a class action lawsuit filed in 2011, the plaintiffs allege that Nicor also charged several customers $19.95/mo. for appliance coverage (while labeling it only as "Nicor Service Charge" on the bill).

So, why is this lawsuit rising to the surface in 2014? Well, it's because Nicor Gas apparently plans to violate the Illinois Eavesdropping Act in order to defend itself against these claims.

The utility recorded millions of phone calls over the course of a decade and plans to “divulge them outside of Nicor and to use them in court as they litigate the consumer class action,” according to a statement about the case...

“The Illinois Eavesdropping Act flatly prohibits corporations who collect or make such recordings from divulging any part of them to any third party and prohibits such recordings be used in court proceedings,” said [Adam] Levitt (plaintiffs' attorney).

“Nicor Gas claims that all customers recorded heard a ‘warning’ before being recorded, and ‘consented’ by remaining on the line after the warning was given. But under the law, any consent only gave Nicor Gas a right to record, not to divulge or use the recordings. Any ‘consent’ they got from customers that permitted them to record was for the limited purpose of internal quality assurance – not for divulgence to outside parties, and certainly not for use in public court proceedings,” according to Levitt.
Even if this use of the Eavesdropping Act may be somewhat questionable given the circumstances (the most probable defense against the claims is that customers agreed to these charges during phone conversations with Nicor Gas), it's hard to see how the power company will route around the specifics of the law.

From the law itself:
No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party.
Exemption (j) covers recorded business-to-consumer "oral telephone solicitation and marketing" recordings. Incoming calls ("What the hell is THIS charge?") are also covered by this exemption.
For the purposes of this subsection (j), "telephone solicitation" means a communication through the use of a telephone by live operators:

(i) soliciting the sale of goods or services;
(ii) receiving orders for the sale of goods or services;
(iii) assisting in the use of goods or services; or
(iv) engaging in the solicitation, administration, or collection of bank or retail credit accounts.
Even if it does somehow find a way to present its recordings as evidence, the calls themselves may be incriminating.
Critics accuse Nicor of using scare tactics to sell ComfortGuard.

According to a ComfortGuard marketing script, Nicor call-center reps are instructed to tell customers "the utility is only legally responsible to make the situation safe or make repairs to its own facilities. What that means is that the property owner (such as yourself) may have to find and hire an independent contractor to come in, do an inspection and then make those repairs. That can be expensive, and it could also mean days without any gas to heat the home, cook and so on."

In fact, ICC [Illinois Commerce Commission] staff argue, Nicor is legally required to inspect leak complaints inside customers' homes and make repairs, at charges typically ranging from $50 to $100.
We'll have to see where Nicor goes with this, but the allegations are pretty damning, and it's hard to see how its own sales tactics and vague line item descriptions are going to help its case. Even if it is interesting to see this law being used as a defense mechanism rather than a weapon against citizens, it only helps to highlight how badly written the Illinois Eavesdropping Act is. If nothing else, it presents yet another reason for legislators to seriously consider scrapping the law and starting over.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Mar 6th, 2014 @ 8:27pm

    Problem solved

    Well at least we'll see it disappear quickly. The pigs have nothing on the influence of gas and oil companies.

    reply to this | link to this | view in thread ]

  2. icon
    ECA (profile), Mar 6th, 2014 @ 9:28pm


    Can we go in and PICK AND CHOOSE corporate conversations..

    reply to this | link to this | view in thread ]

  3. icon
    That One Guy (profile), Mar 7th, 2014 @ 2:21am

    Re: BUT:

    Why of course not, because that would be a violation of their privacy. /s

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Mar 7th, 2014 @ 7:07am

    Bull shit.

    "Warning" does not constitute consent and does not make it legal to begin with. In fact, they have a WRITEN policy of refusing to talk to a customer who expressly prohibits them to record!

    So, if a robber warns me of robbery, and I say nothing, then I "consent" and it is legal, right?

    reply to this | link to this | view in thread ]

  5. identicon
    Dan G Difino, Mar 7th, 2014 @ 7:13am

    Hitting up the masses

    If a company is going to hit the masses up for $20.00 a pop, it better well be known what that charge encompasses and better it not have a monopoly on the market or that is very close to extorting money and who wants to deal with a company that does that.. That happens every day to be sure.

    reply to this | link to this | view in thread ]

  6. icon
    John Fenderson (profile), Mar 7th, 2014 @ 8:12am


    "if a robber warns me of robbery, and I say nothing, then I "consent" and it is legal, right?"

    IANAL, but I don't think so. Consent is a kind of legal contract and contracts for illegal activities are unenforceable.

    reply to this | link to this | view in thread ]

  7. identicon
    PRMan, Mar 7th, 2014 @ 12:11pm

    Re: Problem solved

    Wait! You mean we wrote it so that the average person can use it instead of just corporations?!?

    Repeal that law immediately!

    reply to this | link to this | view in thread ]

  8. icon
    amorro (profile), Mar 7th, 2014 @ 12:16pm

    Illinois Supreme Court Ruling on Eavesdropping Law expected

    The Illinois Supreme Court heard oral arguments on the Eavesdropping Law in January 14th, 2014, and in any time now an opinion is expected that will finally take this infamous law from the book. You can watch the oral arguments here:

    reply to this | link to this | view in thread ]

  9. icon
    toyotabedzrock (profile), Mar 8th, 2014 @ 12:33pm

    The company wants to play the few recordings that show customers asking questions to show they knew what this insurance was for. Or where the Rep explained it in detail.

    reply to this | link to this | view in thread ]

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