California’s privacy statute regulates companies, but not against out-of-state plaintiffs: a recent decision, two takeaways

By Perrie Michael Weiner, Anahit Tagvoryan and Esteban Morales

Throughout 2013 and into the new year, the plaintiffs’ bar has continued to file a steady stream of privacy-related class action claims. With statutes such as California’s Invasion of Privacy Act (CIPA) and the federal Telephone Consumer Protection Act providing for fixed statutory damages, the potential exposure for companies that are sued for making telephone calls in violation of the law can be staggering.

In suits featuring California state law claims and out-of-state plaintiffs, a worthwhile strategy to explore is whether it is possible to limit, or, as we succeeded doing in our client’s case, even eliminate liability by invoking more favourable out-of-state law.

A recent Central District Court decision — Jonczyk v First National Capital Corp — illustrates how an early choice-of-law evaluation in a call-recording case can curb a class action suit at the pleading stage. Although the decision came in the context of CIPA, in appropriate cases the court’s reasoning may extend outside the scope of CIPA and curtail other California privacy or consumer class actions under California law…

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