Jonathan Bilyk Apr. 27, 2015, 9:27pm

Anyone who stayed at Sybaris’ resorts in the Chicago area, as well as Wisconsin and Indiana, in 2012 and 2013 and used the company’s reservation phone system to book their stays, could be in line to participate in a class action against the provider of romantic getaways, after a federal judge granted a former Sybaris employee clearance to proceed with litigation over the company’s practice of recording calls on its reservation lines without allegedly securing the consent required by federal law from call participants.

On April 24, U.S. District Judge Harry D. Leinenweber ruled in Chicago in favor of plaintiff Robert Burrow, certifying a class that could include potentially thousands of guests and employees of Sybaris Clubs International Inc.

Burrow, who formerly worked assisting Syabris “members,” taking their calls as an employee assigned to the resorts’ reservation desk, first brought the matter to light in litigation introduced in 2013. He will represent the class in the action, Leinenweber ordered.

The class will include anyone who made a call “into or out of the reservation telephone lines at Sybaris’ five locations,” in Downers Grove, Frankfort and Northbrook, as well as Indianapolis and Mequon, Wisc., generally between March 19, 2012, and April 11, 2013.

The case centers on Sybaris’ use of a telephone reservation system it began installing in 2011, which allowed it to record conversations between employees working on its 24-hour reservation desk and potential guests.

In his lawsuit, Burrow alleges Sybaris, by failing to acquire the expressed consent to record from either its employees or potential patrons calling to inquire about reservations, violated federal wiretap laws, which prohibit the recording of telephone conversations, unless one party consents to the recording.

While the judge noted both parties “have spilled much ink in trying to paint the recording system at issue as either nefarious (according to Burrow) or innocent (according to Sybaris),” he said the reason underlying Syabris’ decision to allegedly intercept the calls is irrelevant. Leinenweber said the case deals with two primary questions: Whether Sybaris intentionally recorded the calls, and whether at least one party consented to the recording.

“There is no dispute Sybaris intended to record phone calls and in fact did record phone calls,” Leinenweber wrote.

Sybaris argued it had obtained consent from its employees when it informed them “generally that calls made to and from the reservation desks were being recorded” and those employees continued to work their jobs on the reservation desks.

Leinenweber, however, said precedent indicates knowledge of something someone else may do may not necessarily be the same as consenting to the action, comparing such an idea to the notion someone might be implied to consenting to being robbed by walking through a neighborhood notorious for criminal activity.

He said Sybaris may pursue this defense as the case proceeds. But Sybaris’ defense would be the same no matter how many plaintiffs step forward to add their complaint to Burrow’s. As a result, the judge said it would be easier for the court to handle the potentially thousands of complaints as a single class action, rather than individually.

“All of this this shows that the evidence related to Sybaris’s consent defense is common to the class, and just because a class might ‘go down in flames on the merits’ does not mean that a court should refuse certification,” Leinenweber wrote.

The judge also noted the task of identifying potential members of the class should be relatively straightforward, as Sybaris treats all guests as “members,” making them pay an annual membership fee to make reservations at the resorts. With the membership, each guest reserving a room is then assigned a unique identification number.

Those unique numbers can identify customers who made reservations during the class period, and Sybaris’s phone logs along with those customers’ own phone records can determine if they called in to Sybaris to make the reservations.

“Those unique numbers can identify customers who made reservations during the class period, and Sybaris’s phone logs along with those customers’ own phone records can determine if they called in to Sybaris to make the reservations,” the judge said.

Finally, Leinenweber brushed aside Sybaris’ attempt to argue Burrow cannot serve as class representative because he holds a conflict of interest as a one-time management trainee who “took part in the purported surveillance” by listening to recorded calls during his training.

“That Burrow listened to what Sybaris had previously intercepted does not transform Burrow into one who did the intercepting,” the judge said. “It would be odd indeed if a defendant could escape liability for intercepting calls simply by playing those calls for potential class members to listen to.”

Burrow is represented in the action by attorneys Christopher M. Hack, Michael R. Karnuth and Clinton A. Krislov, of the firm of Krislov & Associates, of Chicago.

Sybaris is represented by attorneys Robert A. Carson, Ellen M. Chapelle, Jordan Michael Hanson and Richard S. Reizen, of the firm of Gould & Ratner, of Chicago.

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