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Trump Judge Casts Deciding Vote to Dismiss Class Action Claim Against Corporation for Improper Secret Recordings of Consumers: Confirmed Judges, Confirmed Fears

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Trump Judge Casts Deciding Vote to Dismiss Class Action Claim Against Corporation for Improper Secret Recordings of Consumers: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Patrick Bumatay cast the deciding vote to reverse a district court and rule that a class action suit against Amazon concerning secret recording and use of consumers’ voices should be dismissed and that the person who filed the suit had to submit her claim to individual arbitration instead. The February 2021 decision is Tice v Inc.

 Hayley Tice often used an Amazon voice-activated Alexa device purchased by her husband for shopping and other purposes. When she learned that Amazon secretly records her voice without her consent and then analyzes, uses for commercial purposes,  and stores such recordings, she filed a class action lawsuit against Amazon on behalf of herself and other users under the California Invasion of Privacy Act. Although Tice did not sign any contract or agreement to arbitrate, Amazon nevertheless argued in district court that the class action should be dismissed, and she should be required to arbitrate her claims individually under the contract’s arbitration clause.

The district court ruled that although it would be unfair under state law for Tice to be able to completely avoid the arbitration clause because her husband had purchased the device, the clause did not apply to “unanticipated surreptitious recordings” of “private conversations,” which no one in Tice’s family had “ever agreed”  to  permit Amazon to do. Amazon appealed.

In a 2-1 decision in which Trump judge Bumatay was the deciding vote, a Ninth Circuit panel reversed the district court and ruled that the class action should be dismissed, and that Tice and others should each be required to arbitrate their claims individually. The majority maintained that the district court had improperly and “narrowly construed” the arbitration clause, which it held did apply to the “surreptitious recording” claim. Bumatay also argued in a concurring opinion that Tice had no standing to sue because she had not specifically alleged in her complaint the “independent claim” recognized by the district court concerning “surreptitious recordings,” so her lawsuit should be dismissed and she should only be able to arbitrate her claim.

Judge Richard Eaton dissented. He explained that the claims about improper secret recordings resulted from “the functioning of the Alexa device” in ways that were clearly “unanticipated in the contract,” and which Amazon denied had actually occurred. So even if Tice can be bound by the contract signed by her husband, he continued, her secret recording claims are “not encompassed by the contract and need not be arbitrated” according to past precedent. As to Bumatay’s argument, Eaton pointed out that it was the district court, not Tice in her complaint, that analyzed the case using the “surreptitious recording” idea, and that the contentions in her complaint that she was “recorded without her knowledge and consent” were clearly sufficient to establish standing to sue, as even the other judge in the majority had implicitly agreed.

As a result of Bumatay’s deciding vote, however, Tice’s complaint seeking relief from claimed improper business practices by Amazon on behalf of numerous California consumers will be dismissed and they will be left only to burdensome and impractical individual arbitration. This case is the latest example of decisions made possible by Trump judges and justices to harm consumers by dismissing class action claims against big corporations for corporate misconduct and forcing consumers to resort to such individual arbitration instead.


Amazon, class actions, Confirmed Judges Confirmed Fears, Ninth Circuit Court of Appeals, Patrick Bumatay