Lawyer sues credit card company for recording call. $5,200 plus arbitration costs.

Facts and Background

• Facts and Background:

  Plaintiff sued defendant for violation of PC Sect. 632(a) – for defendant recording a telephone without the consent of all parties to the conversation – for $5,000.00 in statutory damages per PC Sect. 637.2.

  Defendant made a motion to compel arbitration in accordance with the terms of Costco Citibank's Anywhere Visa credit card agreement. The court granted defendant's motion to compel arbitration. Arbitration was held by an American Arbitration Association affiliated arbitrator, Michael J. Tucker, Esq. The matter was submitted to the arbitrator by two briefs by both parties. No oral argument or physical appearance at a hearing was permitted by the arbitrator. The arbitrator awarded plaintiff $5,200. Upon plaintiff's petition to the court (Judge Corey S. Cramin) for a Judgment Confirming the Award, the court entered judgment against Citibank, N.A. (which was the proper name of the defendant.) In addition to the court granting plaintiff's motion to confirm the award of $5,200, The court also awarded plaintiff costs ($275.00) and accrued interest of $85.48.

  The Costco Citibank Anywhere credit card agreement with plaintiff included a provision that Citibank would pay arbitration costs if a dispute arose between the parties that was not related to collection of a debt. The case was not related to any debt or collection of a debt, but for Invasion of Privacy (violation of PC Sect. 632(a). The arbitrator's award/decision include that Citibank was responsible for the AAA fees of $1,900; and the arbitrator's separate fees of $3,000.

• Plaintiff's Contentions:

  Defendant's agent telephoned plaintiff to inquire whether plaintiff received a replacement credit card as requested. Plaintiff asked if the telephone call was being recorded. Defendant's agent stated it was being recorded. Plaintiff asked the agent if plaintiff gave his consent to record the call. Defendant's agent said, "No."

  Plaintiff asked agent exactly when the recording of the telephone call began. Defendant's agent stated the recording started when plaintiff answered his telephone. Plaintiff asked defendant's agent for his name and employee ID number which agent provided.

  Plaintiff wrote a demand letter to the legal department of Citicorp Credit Card Services, Inc. demanding $5,000 per PC. Sect. 637.2 due to defendant's violation of PC Sect. 632(a). Defendant agreed to settle only if plaintiff would agree to a Settlement/Release Agreement that included provisions of confidentiality and the Agreement be governed by South Dakota law. Plaintiff did not agree. Defendant would not eliminate the requirements. Plaintiff sued in Orange County Superior Court.

• Defendant's Contentions:

  Defendant contended the law of South Dakota applied. 

  Defendant contended the credit card agreement (existing between Citibank and plaintiff relating to plaintiff's Costco Citibank Anywhere Business Visa card) contained a provision that defendant could record telephone calls.