A California consumer has filed a proposed class action against Sears Holdings Management Corporation after the company allegedly recorded his phone call with a customer service representative without consent.
According to the complaint, after unsuccessful attempts to unsubscribe from promotional emails sent by Sears, the plaintiff sent the defendant a letter requesting assistance in October 2017. The following November, the plaintiff received a phone call from the defendant during which he thought he could resolve the issue, the suit says.
“Only after speaking with Plaintiff at length did the caller inform Plaintiff for the first time that the call was being recorded,” the complaint claims, alleging the call was a violation of section 632.7 of the California Penal Code, which prohibits the intentional recording or monitoring of phone calls without the consent of all parties.
The case goes on to allege the defendant further violated state law by subjecting the plaintiff to a gag order in the terms and conditions of its loyalty program, Shop Your Way. The supposed gag order prohibits members “from making statements about Defendant, or its employees or agents, or concerning Defendant’s goods or services,” the suit explains. The case argues this order violates section 1670.8 of the California Civil Code, which outlaws any provision that attempts to waive consumers’ rights to make statements about companies or their employees.