The plaintiff, Maggie Franco, claims that at no point during her telephone conversation with an Abbott representative was she asked for or provided "express or implied consent to the recording." According to the lawsuit, Abbott allegedly "records all incoming telephone calls" without disclosure, which is in direct violation of California' Invasion of Privacy Act. Franco had called a toll free number supplied by Abbott regarding Similac Infant Formula which was recalled in September 2010.
According to the lawsuit, the California penal code defines contact between landlines, cellphones, and cordless phones, deeming a violation has occurred when a person "intercepts or receives and intentionally records" or assists in that effort "without the consent of all parties." California is one of many states that stipulate all parties involved in a phone call must agree to have that phone call recorded.
In her wiretap class action lawsuit, Franco is seeking statutory damages of up to $5,000 per violation or treble damages if Abbott Laboratories is found to have engaged in illicit wiretapping in a wanton matter. The plaintiffs are represented by Thomas D. Mauriello of Mauriello Law Firm APC and James C. Shah and Rose F. Luzon of Shepherd Finkelman Miller & Shah, LLP.