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Case 2:10-cv-08022-DMG -VBK Document 24

Filed 05/05/11 Page 1 of 10 Page ID #:196

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Gregory N. Karasik State Bar No. 1 15 834 Spiro Moss LLP 11377 W. Olympic Boulevard, 5 Floor Los Angeles, California 90064-1683 Tel. (10) 235-2468, Fax (310) 235-2456 gregspiromoSS.COm
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SahagMajarian,II- State Bar No. 146621 Law Offices of Sahag Majarian, II 18250 Ventura Blvd. Tarzana, California 91356 Tel. (818) 609-0807, Fax (818) 609-0892 sahagiiaol.com Attorneys for Plaintiff FRANCISCO MARENCO UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FRANCISCO MARENCO, individually and on behalf of other persons similarly situated, Plaintiff, vs. VISA INC., a Delaware corporation, Defendant.

Case No. CV 10-8022 DMG (VBKa) FIRST AMENDED COMPLAINT

Plaintiff Francisco Marenco (Plaintiff), on behalf of himself and all others similarly situated, complains and alleges as follows: INTRODUCTION This class action lawsuit arises out of the unlawful recording of confidential telephone conversations by defendant Visa Inc. (Visa). Visa recorded in thousands of telephone calls to customer service representatives, made by customers 1. (the the states of California, Florida, Maryland, Nevada, New Hampshire or Washington Covered States), who reasonably expected that no one would be recording their
FIRST AMENDED COMPLAINT 1

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conversation with the customer service representative they spoke with, without disclosing that their telephone calls would be recorded. Recording of those telephone calls without consent violated the laws of the Covered States and every customer who had a confidential telephone call recorded without their consent is entitled to statutory damages.
JURISDICTION AND VENUE

2.
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The Court has diversity jurisdiction under the Class Action Fairness Act

pursuant to 28 U.S.C.

1332(d)(2). There are more than 100 class members,

Defendant is a Delaware corporation with its principal place of business in California, there are class members who are citizens of states other than California or Delaware, less than two-thirds of the members of the class are citizens of California, and the amount in controversy exclusive of interest and costs exceeds $5,000,000. 3. Venue is proper in this judicial district pursuant to 28 U.S.C.

1391

is
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because Defendant does business and therefore resides in this district and/or a substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this district.
THE PARTIES A. Plaintiff

Plaintiff is a resident of Los Angeles County, California. When Plaintiff worked as an employee of DirecTV, mc, he was paid wages with a debit card whose customer service operations were managed by Visa. On February 19, 2010, Plaintiff 4. called the customer service telephone number 877 237-4321 and spoke to a customer service representative about his debit card account. Unbeknownst to Plaintiff at that time, Defendant recorded that telephone conversation. At no time prior to or during the conversation did Defendant provide notice to Plaintiff that the call would be recorded, such that Plaintiff reasonably expected that the call would not be recorded and Defendant recorded the conversation without Plaintiffs consent. 5. The members of the Class, defined in paragraph 7 below, are identifiable,
FIRST AMENDED COMPLAINT 2

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similarly situated persons who had their telephone calls with a customer service representative recorded by Visa without their consent. B. 6. Defendant Visa Inc. is a Delaware corporation with its principal place of business in

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Foster City, California. CLASS ACTION ALLEGATIONS 7. Plaintiff brings this action on behalf of himself and on behalf of all other

similarly situated persons as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Class is defined as follows: All persons (excluding Defendant, its parent, subsidiaries and affiliates, and any officers and directors thereof, as well as any judge presiding over this action, the judges spouse and immediate family) who called any of the Affected Phone Lines listed below prior to October 1, 2010 and spoke with a live person, and who at the time of the call resided or were located in California, Florida, Maryland, Nevada, New Hampshire, or Washington. (800) 504-5719 (866) 213-3293 (866) 262-7439 (866) 270-9603 (866) 272-2723 (866) 304-1554 (866) 309-4933 (866) 3 17-9692 (866) 360-2857 (866) 436-1824 (866) 446-6770 (866) 466-2352 (866) 543-9161 (866) 599-5618 (866) 620-1368 (800) 504-5724 (866) 236-7967 (866) 262-9488 (866) 271-2933 (866) 272-4480 (866) 304-1580 (866) 309-4934 (866) 317-9693 (866) 360-2864 (866) 436-1964 (866) 446-6790 (866) 466-2362 (866) 543-9167 (866) 602-8199 (866) 673-6574 (866) 209-4909 (866) 236-7969 (866) 262-9977 (866) 271-3934 (866) 287-24 1 1 (866) 304-1909 (866) 309-4937 (866) 335-9097 (866) 361-3867 (866) 436-1965 (866) 446-6805 (866) 543-9126 (866) 594-6378 (866) 620-1329 (866) 692-9282 (866) 210-3170 (866) 262-7438 (866) 270-9602 (866) 271-7780 (866) 304-1 164 (866) 304-8680 (866) 317-9691 (866) 360-2842 (866) 416-5689 (866) 436-1970 (866) 446-6976 (866) 543-9160 (866) 594-6438 (866) 620-1367 (866) 707-4346

FIRST AMENDED COMPLAINT 3

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(866) 708-9366 (866) 791-0548 (866) 791-8848 (866) 798-2045 (866) 798-2272 (866) 809-2676 (866) 840-2570 (866) 853-0146 (866) 887-9588 (866) 906-4123 (866)909-9003 (866) 928-9245 (888) 294-2249 (888) 373-5715 (888) 373-5775 (888)738-1697 8.

(866) 763-3370 (866) 791-6841 (866) 791-9611 (866) 798-2084 (866) 798-2992 (866) 809-2679 (866) 840-2930 (866) 853-8406 (866) 902-1482 (866) 906-4130 (866)910-4750 (877) 237-4321 (888) 373-2883 (888) 373-5727 (888) 373-5781

(866) 763-3372 (866) 791-6843 (866) 791-9615 (866) 798-2 1 12 (866) 798-3080 (866) 839-7481 (866) 840-3476 (866) 884-6106 (866) 902-4339 (866) 906-4168 (866)913-0886 (877) 703-5850 (888) 373-2884 (888) 373-5737 (888)373-5811

(866) 767-0810 (866) 791-7431 (866) 791-9989 (866) 798-2226 (866)798-3113 (866) 839-7599 (866) 840-3792 (866) 887-1376 (866) 902-7469 (866) 906-4170 (866)928-9237 (877) 876-4089 (888) 373-5707 (888) 373-5771 (888) 654-5188

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Plaintiffs claims are brought and may be maintained as a class action Numerosity. The Class members are so numerous that individual joinder of all of them as plaintiffs is impractical. While the exact number of Class members is unknown to Plaintiff at this time, Plaintiff is informed and believes and thereon alleges that there are not less than 10,000 members in the Class.

under Rule 23(a) of the Federal Rules of Civil Procedure. a.

b.

Commonality. There are questions of law or fact common to class members. These common questions include, but are not limited to: (1) Did Defendant have a practice of recording telephone conversations between customers and customer service representatives?

FIRST AMENDED COMPLAINT 4

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(2)

Did Defendant have a practice of not informing customers that their telephone conversations with customer service representatives would be recorded?

(3)

Did Defendant violate the laws of the Covered States by intentionally recording the telephone conversations of customers without their consent?

(4)

Are Class members entitled under the laws of the Covered States to statutory or liquidated damages?

c.

Typicality. Plaintiff is a member of the Class, and his claims are typical of the claims of the other Class members. Plaintiff suffered the same kinds of injuries suffered by other Class members and seeks the same kind of relief sought by other Class members. Adequate Representation. Plaintiff will adequately and fairly protect the interests of the members of the Class. Plaintiff has no interest adverse to the interests of absent Class members. Plaintiff is represented by legal counsel who have substantial class action experience in civil litigation and employment law. Plaintiffs claims are brought and may be maintained as a class action

d.

9.

under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Class action treatment will allow a large number of similarly situated consumers to prosecute their common claims in a single forum, simultaneously, efficiently, and without the unnecessary duplication of effort and expense that numerous individual actions would require. Further, the monetary amounts due to many individual class members are likely to be relatively small, and the burden and expense of individual litigation would make it difficult or impossible for individual class members to seek and obtain relief. A class action will serve an important public
FIRST AMENDED COMPLAINT 5

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interest bypermitting consumers harmed by Defendants unlawful practices to effectively pursue recovery of the sums owed to them. 10. Plaintiff is unaware of any difficulties that are likely to be encountered in

the management of this action that would preclude its maintenance as a class action. Plaintiff, however, reserves the right to modify the scope of his class claims and/or the

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definition of the Class as may be warranted by investigation, discovery, legal developments or other events which occur during the litigation of Plaintiffs claims.
FIRST CAUSE OF ACTION UNLAWFUL RECORDING OF CONFIDENTIAL COMMUNICATIONS (By Plaintiff and the Class against Defendant)

11.

Plaintiff incorporates paragraphs 1 through 10 of this complaint as if fully At all relevant times, Plaintiff and the other members of the Class were

alleged herein. 12. persons entitled to legal protection against invasion of privacy pursuant to the following laws of the Covered States: a. b. c. d. e. f. 13. California Florida Maryland Nevada New Hampshire Washington. Penal Code Section 632 Fla. Stat. Ch. 934.03 Md. Code Ann., Cts. & Jud. Proc., Nev. Rev. Stat Ann.

10-402

200.620 N.H. Rev. Stat. Ann. 570-A:2-I Wash. Rev. Code 9.73.030(1)

Pursuant to the laws of the Covered States, it is unlawful for a person to

intentionally record a confidential telephone conversation without the consent of all parties to that conversation. 14. Defendant intentionally recorded the confidential telephone conversations of Plaintiff and other members of the Class in violation of the laws of the Covered States. Plaintiff is informed and believes and thereon alleges that at times within the limitations period applicable to this cause of action, Defendant had a practice of
FIRST AMENDED COMPLAINT 6

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recordingtelephone conversations between customers who called the Affected Phone Lines and customer service representatives, which the customers reasonably expected would be confined to those parties, without notifying customers beforehand that the telephone conversation would or might be recorded. 15. As a result of its conduct, Defendant caused legal harm or injury to

Plaintiff and other members of the Class by invading their privacy in violation of the laws of the Covered States. 16. Pursuant to the laws of the Covered States, Plaintiff and other members of

the Class are entitled to recover statutory damages for each invasion of their privacy without having to prove that they suffered or were threatened with any actual monetary damages, as follows: a. b. California Florida $5,000 per violation (Penal Code Section 637.2); greater of $100 a day for each day of violation or $1,000 (Fla. Stat. Ch. 934.10); c. Maryland greater of$l00 a day for each day of violation or $1,000 (Md. Code Ann., Cts. & Jud. Proc. d. Nevada

10-4 10);

greater of$100 per day of violation or $1,000 (Nev. Rev. Stat. Ann.

200.690)

e.

New Hampshire

greater or $100 per day or $1,000 (N.H. Rev. Stat. Ann.

f. Washington

570:A:11);

$100 for each day of violation not to exceed $1,000 (Wash. Rev. Code

9.73.060).

17.

Plaintiff and members of the Class are entitled to recover reasonable

attorneys fees pursuant to the laws of the Covered States, the substantial benefit doctrine and/or the common fund doctrine.
PRAYER FOR RELIEF

WHEREFORE, on behalf of himself and all others similarly situated, Plaintiff prays for judgment against Defendant as follows:
FIRST AMENDED COMPLAINT 7

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A.

An order certifying this case as a class action and appointing Plaintiff and

his counsel to represent the Class; B. C. Statutory damages pursuant to the laws of the Covered States; Reasonable attorneys fees; Costs of suit; and Such other relief as the Court may deem just and proper. SPIRO MOSS LLP By

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D. E.

Dated: May 5, 2011

1 /C

FIRST AMENDED COMPLAINT 8

Case 2:10-cv-08022-DMG -VBK Document 24

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PROOF OF SERVICE CENTRAL DISTRICT, CASE NO. CV 10-8022 DMG (VBKx) USDC, MARENCO VS. VISA INC.

1 am employed in the State of California, County of Los Angeles. I am over the age of 18 and not a party to the within suit; my business address is 11377 W. Olympic Blvd., 5 Floor, Los Angeles, California 90064. 1 served the document described as: FIRST AMENDED COMPLAINT on the interested parties in this action by sending [ ] the original [on [v] a true copy thereof [/] to interested parties as follows [orj [ I as stated on the attached service list:
SEE ATTACHED SERVICE LIST BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles. California. I am readily familiar with this firms practice of collection and processing correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. BY ELECTRONIC TRANSMISSION: On the date set forth below I caused to be transmitted the document(s) listed above on the parties listed herein at their most recent known e-mail address(s) or e-mail of record in this action before 6:00 p.m. I hereby certify that this document was served from Los Angeles. California. BY FAX: I hereby certify that this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax number of record in this action. BY PERSONAL SERVICE: I delivered the document, enclosed in a sealed envelope, by hand to the offices of the addressee(s) named herein. BY OVERNIGHT DELIVERY: I am readily familiar with this firms practice of collection and processing correspondence for overnight deli.ery. Under that practice, overnight packages are enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered by our office to a designated collection site.

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CM/ECF ELECTRONIC FILING: I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set tbrth above pursuant to Fed.R.Civ.P.5(d)(1). A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion ofan electronic filing. The NEF, when e mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(l). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se

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1 declare under penalty of eriury unth true and correct. Executed this 5 day of May, 2( Jeanette Tucci Kerr Type or Print Name

State of California that the foregoing is California.

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SERV1CEL1S1

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Perrie Weiner, Esq. Edward D. Totino, Esq. Ana Tagvoryan, Esq. DI,A PIPER LLP 1999 Avenue of the Stars, Suite 400 Los Angeles, CA 90067 Email: perrie.weiner(dlapiper.com Email: Edward.totino@dlpiper.com Email: Ana.tagvorvan()dlapiper.com t. 310.595.3000 f. 310.595.3300

Robert C. Holtzapple, Esq. Thomas B. Mayhew, Esq. FARELLA BRAUN & MARTEL

ivionigomery reet San Francisco, CA 94101 Email: tmayhew@thm.com t. 415.954.4400 f. 415.954.4480

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