By Gerald L. Maatman, Jr., Justin R. Donoho, and Hayley Ryan
Duane Morris Takeaways: On October 15, 2026, in Alholm, et al. v. The Vrdolyak Law Group, LLC, No. 22-CV-1820, 2026 WL 3082834 (N.D. Ill. Oct. 15, 2026), Judge Georgia N. Alexakis of the U.S. District Court for the Northern District of Illinois denied class certification in a case brought by former employees against a law firm alleging that the company secretly recorded their telephone conversations in violation of the federal wiretap act, Tennessee’s wiretap act, and Illinois’ eavesdropping act. The ruling is significant as it shows that while plaintiffs’ circumstantial evidence of one plaintiff’s call recordings and of the employer’s history of surveillance may suffice to withstand summary judgment on plaintiffs’ individual claims for illegal wiretapping and eavesdropping, Rule 23 requires more evidence than that in order for plaintiffs to show that the central issue of whether alleged class members’ calls were recorded is a common question that can be resolved in one stroke with common evidence. Further, the ruling shows that absent such common evidence on the central issue of whether a company recorded any or all of the calls made over its system, proposed classes of people who had conversations over the system cannot satisfy Rule 23(b)(3)’s predominance requirement.
Background
In Alholm, former employees of a law firm brought suit against their former employer alleging that the firm secretly recorded their telephone conversations while each was employed there. They brought class claims for illegal wiretapping under 18 U.S.C. § 2511 and section 39-13-601 of the Tennessee Code, and for illegal eavesdropping under section 5/14-1 of chapter 720 of the Illinois Compiled Statutes.
The company answered the complaint, the parties engaged in discovery, and the court denied summary judgment to the company and ordered the setting of a trial date. In so holding, the court found a genuine factual dispute as to whether the employer actually intercepted and eavesdropped upon the plaintiffs’ calls and did so intentionally, based on conflicting circumstantial evidence submitted by both parties as to whether the company recorded the plaintiffs’ calls. Alholm, et al. v. Vrdolyak L. Grp., LLC, 2026 WL 1194954 (N.D. Ill. May 1, 2026).
On the one hand, Plaintiffs submitted evidence consisting of call recordings of one of the former employees purportedly discovered on the system by one of the former employees, evidence that the phone system has a call recording feature that only would have been activated at the request of the employer, and evidence from which the court found that “a reasonable jury could conclude that [the company] had a history of intentionally monitoring its employees and that its call recording was the result of defendant’s conscious objective rather than the product of a mistake or an accident.” Id. at *13.
But the court found other evidence pointing the other way, including testimony from the phone system provider that the system could record a call on an individual phone line if the user of the line dialed a specific key code during the call. In addition, the phone system provider testified that the call recording could have been turned on only for the one named plaintiff who had found the recordings of the allegedly intercepted calls. Further, the phone system provider testified that the employer never asked it to activate the system’s call-recording function, that the function had never been activated, and that the system lacked the storage capacity and processing power to record employer’s high volume of calls. Members of the employer’s senior leadership also testified that they never authorized the recording of calls. Id.
Before trial, the plaintiffs moved for class certification, seeking to certify classes consisting of all employees, clients, and potential clients of the employer who had a telephone conversation between November 1, 2019, and January 28, 2020, with a person using the employer’s telephone system.
The Court’s Decision
The Court found that the central question of the case of whether calls made over the company’s phone system were recorded was an individualized issue that predominated over any common issues and, accordingly, denied class certification for lack of predominance, without deciding any other Rule 23 requirement.
As the Court explained, for all three wiretapping and eavesdropping claims, the question “that towers over all others” is whether calls made over the company’s phone system were recorded. Alholm, 2026 WL 3082834, at *3.
So, first, the Court considered whether that question can be answered, yes or no, using common evidence.
The Court found that the plaintiffs lacked common evidence of call recordings. First, it found that evidence of the company’s pervasive surveillance through the use of video cameras and encouragement of employees to monitor subordinates might be admissible for showing intent but not for establishing actual recording of calls made over the phone system.
Second, the court ruled that the recordings of only one plaintiff’s calls did not constitute common evidence of class-wide recordings because plaintiffs lacked any “glue” holding these calls “together with the calls of the other class members—some fact showing that if [one plaintiff]’s calls were recorded then those of other class members were as well.” Id. at *5. For example, the court noted conflicting testimony from the phone system’s administrators as to whether the system could only record calls on a system-wide basis. Moreover, additional testimony showed that recordings could be made on the phone system not just by the company and its system administrators but also individually by end users. Id. at *6-9.
For these reasons, the Court determined that the plaintiffs lacked common evidence of call recording by the company.
Further, the Court opined that because this question of whether the company recorded any or all of the calls made over its system is the central issue in the case and, owing to a lack of common evidence, is not a common once, “the proposed class cannot satisfy Rule 23(b)(3)’s predominance requirement, and the class cannot be certified.” Id. at *9.
Finally, the Court held that because the plaintiffs’ failure to satisfy predominance was enough to preclude class certification, the Court declined to assess whether the proposed class satisfied the other requirements of Rule 23(a) and Rule 23(b)(3). Id. at * 10.
Implications For Companies
Alholm provides powerful precedent for any company opposing certification of wiretapping and eavesdropping class actions involving alleged call recordings where plaintiffs lack common evidence to show a class-wide practice of making call recordings.
This precedent is also key for limiting any large statutory penalties under wiretapping and eavesdropping statutes ($10,000 under the federal wiretap act, for example) to only such penalties sought individually by any named plaintiffs who have filed a complaint and amassed enough evidence to go to trial on whether the company recorded their own individual phone calls.
In sum, as Aholm demonstrates, a former employee’s circumstantial evidence that the employer recorded his or her calls, even if sufficient to go to trial on the former employee’s individual claims, alone, may not suffice for that former employee to represent and go to trial on behalf of other former employees, who may need to prove their own call recordings individually.