Fear Not Law Articles: KELLY v. Salomon Smith Barney, Inc Part III

KELLY v. Salomon Smith Barney, Inc

Filed 7/13/06

IN THE SUPREME COURT OF CALIFORNIA

KELLY KEARNEY et al., )

)

Plaintiffs and Appellants, )

) S124739

v. )

) Ct.App. 1/2 A101477

Salomon Smith Barney, Inc., )

) San Francisco County

Defendant and Respondent. ) Super. Ct. No. 412197

___________ )

Story continue from Part II â€¦â€¦â€¦

With regard to the further question whether the Georgia privacy statutes are intended to apply to a telephone call in which one of the parties is in Georgia and one of the parties is in another state, there is nothing in the language of the Georgia statutes that expressly addresses this issue. In light of the underlying purpose of the Georgia statute, however, we believe that -- as we have concluded with regard to the California statute -- the applicable Georgia statutes were intended, and reasonably should be interpreted, to apply to such a call.

A hypothetical example may help explain our conclusion in this regard. Consider a situation in which a third party --located in a state other than Georgia or California -- were to wiretap or intercept a telephone call between a person in Georgia and a person in California without the knowledge or consent of either party to the conversation. In that setting, the wiretapping would violate the relevant privacy law of both California and Georgia, and each state clearly would have a legitimate and substantial interest in applying its statute to the unlawful invasion of privacy of the person located within its state, whereas the state in which the person who committed the wiretapping was situated would not have that interest (although it still might have an interest in permitting an action against the wiretapper if the conduct were unlawful under its state's law). As this example demonstrates, in light of the principal purpose underlying the kind of privacy provisions here at issue, it is most reasonable to conclude that a state's privacy statute should be interpreted to apply to a telephone call in which one or more of the parties to the call are located within the state.

Accordingly, we conclude that the Georgia statute, as well as the California statute, applies to the telephone calls at issue in this case, and that the law of each state differs with regard to the legality of such conduct. Although it is unlawful under California law for a party to a telephone conversation to record the conversation without the knowledge of all other parties to the conversation, such conduct is not unlawful under Georgia law.

Plaintiffs maintain, however, that although California law and Georgia law differ, there nonetheless is no true conflict in this situation. Although it is evident that California has a legitimate interest in having its law applied in the present setting because plaintiffs are California residents whose telephone conversations in California were recorded without their knowledge or consent, plaintiffs contend that Georgia does not have an interest in having its law applied here, because the fundamental purpose of the Georgia statute is to protect the privacy of conversations that have some relationship to Georgia and in this case there is no claim that the privacy of any Georgia resident or any person or business in Georgia has been violated.

Although plaintiffs are correct that the facts of this case do not implicate the privacy interests protected by the Georgia statute, the Georgia statute also can reasonably be viewed as establishing the general ground rules under which persons in Georgia may act with regard to the recording of private conversations, including telephone calls. Because Georgia law prohibits the recording of such conversations except when the recording is made by one of the parties to the conversation or with such a party's consent, persons in Georgia reasonably may expect, at least as a general matter, that they lawfully can record their own conversations with others without obtaining the other person's consent, and Georgia has a legitimate interest in not having liability imposed on persons or businesses who have acted in Georgia in reasonable reliance on the provisions of Georgia law. Because the conduct of SSB that is at issue in this case involves activity that its employees engaged in within Georgia, we believe that Georgia possesses a legitimate interest in having its law applied in this setting.

Accordingly, we conclude that this case presents a true conflict of laws.

As discussed at some length earlier (ante, at pp. 18â€‘24), the governing authorities establish that once a court's preliminary analysis has identified a true conflict, â€

Description	In action seeking to enjoin practice of Atlanta branch of nationwide brokerage firm--which has numerous offices and does extensive business in California--of recording telephone calls made to and from California clients without their knowledge or consent and seeking to recover damages for past recordings--where California law prohibits recording of a telephone conversation without the consent of all parties to the conversation whereas Georgia law allows recording of a telephone conversation where one party to conversation consents--California law should apply with respect to injunctive relief because failure to apply California law would impair California's interest in protecting degree of privacy afforded to California residents by California law more severely than application of California law would impair any interests of the state of Georgia; Georgia law should apply with respect to the request for damages for calls recorded in past because Georgia's interest would be more severely impaired were monetary liability to be imposed for such past conduct.
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.