Recent Developments from Around the States

Denying class action treatment, the trial court agreed with Respondent in finding that “while applicants who had been interviewed could be gleaned from among those who were ultimately employed, it was impossible to determine whether an applicant participated in a presentation or interview that was taped because not all interviews were taped and no written records were kept of the tapings.” Furthermore, “in the absence of a company policy to tape, there was no well-defined community of interest because individual questions would predominate as to whether confidential communications were involved, whether consent was given and the time of discovery for statute of limitations purposes.” The trial court also found that the class action vehicle was not appropriate in this case because relief could be adequately garnered through an individual lawsuit.

Upholding the lower court's judgment, the California Court of Appeal for the Second District held that “[w]hile the court recognized that being interviewed was an objective criteria and that whether an applicant consented to taping was an ultimate fact each class member would have to prove in order to establish liability, the predicate issue of whether an alleged recording of an applicant took place could not be resolved.” Thus, “defining a class and its participants was connected to knowing whether an applicant had been taped,” something that the trial court deemed unfeasible given the varying techniques between branch offices and lack of adequate statistical evidence to amount to substantial evidence of the class action requisites. “In short, appellants' proposed class definition … offered no objective means of allowing identification of a manageable class to be bound by the results of the litigation.” Further, the trial court was entitled to its discretion in determining that class action treatment was not the superior method for going forward with appellants' claims.

Job Applicants Who May Have Been Taped Without Their Consent Cannot Form Ascertainable Class

Affirming the lower court's decision, the Second District California Court of Appeals has held that for purposes of class certification, a class of individuals who may have been videotaped and/or audiotaped during their job application process did not constitute a properly ascertainable class for purposes of class certification, nor was class treatment a superior method for handling a potential lawsuit brought by these applicants. Craven v. Diversified Financial Concepts, Inc., 2005 WL 3112177 (Cal.App. 2 Dist., Nov. 22).

Appellants John Craven and Jared Zubalsky, former employees of Respondent Diversified Concepts, Inc., an insurance and financial products marketing company, brought suit against Respondent after learning, subsequent to leaving the company, that during their application process they and other applicants may have been taped without their knowledge or consent. The application process consisted of a 2-day session, on the first day of which a group slide show presentation was shown, followed by a question-and-answer period and one-on-one interviews, and on the second day of which additional one-on-one interviews were conducted. Appellants alleged that one or both of these segments of the process were videotaped or audiotaped at various of Respondent's branches, and that they, and other class members, had neither been informed of this practice, nor asked to consent prior to its use. In fact, Respondent had inconsistent policies for the taping of applicants across its various California offices; while some offices never videotaped or audiotaped these sessions, some did so with applicants' consent, and others did so without consent, but for training purposes only, and not to focus on applicants. Appellants sued Respondent for violations of Penal Code section 632 and Business and Professions Code section 17200 on behalf of themselves and others similarly situated, whom the complaint identified as the class of all persons “'who participated in the group slide presentations, the individual and/or one-on-one interviews as a part of their application for employment as a commissioned employee with [respondent] at one of its California offices for the past 4 years.'”

Denying class action treatment, the trial court agreed with Respondent in finding that “while applicants who had been interviewed could be gleaned from among those who were ultimately employed, it was impossible to determine whether an applicant participated in a presentation or interview that was taped because not all interviews were taped and no written records were kept of the tapings.” Furthermore, “in the absence of a company policy to tape, there was no well-defined community of interest because individual questions would predominate as to whether confidential communications were involved, whether consent was given and the time of discovery for statute of limitations purposes.” The trial court also found that the class action vehicle was not appropriate in this case because relief could be adequately garnered through an individual lawsuit.

Upholding the lower court's judgment, the California Court of Appeal for the Second District held that “[w]hile the court recognized that being interviewed was an objective criteria and that whether an applicant consented to taping was an ultimate fact each class member would have to prove in order to establish liability, the predicate issue of whether an alleged recording of an applicant took place could not be resolved.” Thus, “defining a class and its participants was connected to knowing whether an applicant had been taped,” something that the trial court deemed unfeasible given the varying techniques between branch offices and lack of adequate statistical evidence to amount to substantial evidence of the class action requisites. “In short, appellants' proposed class definition … offered no objective means of allowing identification of a manageable class to be bound by the results of the litigation.” Further, the trial court was entitled to its discretion in determining that class action treatment was not the superior method for going forward with appellants' claims.