The full case caption appears at the
end of this opinion. Posner, Chief Judge. This is a suit under thefederal electronic-eavesdropping statute (TitleIII of the Omnibus Crime Control and Safe StreetsAct of 1968, 18 U.S.C. sec.sec. 2510 et seq.)against the former police chief of Woodstock,Illinois, and other former members of theWoodstock police department, complaining aboutthe taping of one of the department’s telephonelines, (815) 338-7799, between February andOctober of 1992. (The Title III charge againstthe City of Woodstock itself was dismissed beforetrial.) The appeal presents questions, bothsubstantive and procedural, of some novelty. The plaintiffs, 63 in number, are employees andformer employees of the police department, andtheir friends and family members, who used theline for personal calls not realizing (they say)that the calls were being recorded. A jurybrought in a verdict for the defendants, and theplaintiffs appeal. The complaint included,besides the Title III charge, a charge under 42U.S.C. sec. 1983 that the defendants had violatedthe Fourth Amendment (made applicable to stateand local governmental action by interpretationof the Fourteenth Amendment), but the plaintiffsdo not challenge the part of the verdict thatrejected this theory of liability. Their principal argument is that they wereentitled to judgment as a matter of law on theTitle III count because the evidence, even whenconstrued as favorably to the defendants as therecord will permit, established a violation. Thetaping was indeed a prima facie violation, see 18U.S.C. sec. 2511(1), but the defendants argued,and the jury agreed, that it came within thestatutory exclusion of eavesdropping “by aninvestigative or law enforcement officer in theordinary course of his duties.” 18 U.S.C. sec.2510(5)(a)(ii). (See sec. 2510(4) for theconnection between sec. 2511(1), the prima facieviolation, and sec. 2510(5)(a)(ii), theexclusion.) It is routine, standard, hence”ordinary” for all calls to and from the policeto be recorded. Such calls may constitute vitalevidence or leads to evidence, and monitoring them is also necessary for evaluating the speedand adequacy of the response of the police totips, complaints, and calls for emergencyassistance. Title III also contains an exclusion forinterceptions made in the “ordinary course ofbusiness.” 18 U.S.C. sec. 2510(5)(a)(i). This isintended for situations in which a business orother entity, presumably one not involved in lawenforcement (for otherwise this exclusion wouldduplicate the one for eavesdropping in theordinary course of law enforcement), recordscalls to or from its premises in order to monitorperformance by its employees. See, e.g., Sandersv. Robert Bosch Corp., 38 F.3d 736, 740-42 (4thCir. 1994); Deal v. Spears, 980 F.2d 1153, 1158(8th Cir. 1992). A possible interpretation of thetwo closely related “ordinary course” exclusionsis that they place beyond the reach of Title IIIcases in which the subscriber to a telephone linerecords calls on his line as opposed tointercepting calls on other people’s lines.Indeed, the very term “interception” could bethought misplaced when applied to a subscriber’srecording calls on his own line. But thisinterpretation, implicitly rejected in Sandersand Deal, is not pressed by the defendants, so welay it to one side. The Woodstock police department began recordingall calls on all its lines in 1982 with theexception of calls on 338-7799, an unlisted line.A departmental memo that year to the employeesexplained that this “line was intentionally leftuntapped to allow for personal calls, however, werequest that you keep those calls brief and to aminimum.” From time to time in subsequent yearsdepartmental memoranda or correspondence referredto the line as not being tapped. The line was used for business as well aspersonal calls, particularly calls to and frompublic agencies and banks. The tapped lines, atthe time, emitted a beep, and there was a concernthat if such a line were used to acknowledge acall from a bank reporting a bank robbery inprogress, the robber would take the call andrealize that the robbery had been reported. InMay of 1991, a call was made on 338-7799complaining about a chlorine leak in a city pool.A city councilwoman was dissatisfied with thepolice department’s response to the complaint,but investigation was stymied by the fact thatthe call had not been recorded. So the departmentdecided to tape record calls on 338-7799. But itdid not tell the employees, though many of themmay have known about it. The taping was”officially” discovered when one of thedefendants, reviewing a tape, heard one of theplaintiffs making derogatory comments about himand complained to the president of the localpolice union, telling him in the course of theirconversation that all calls, including those on338-7799, were being taped. This suit followed. The plaintiffs argue that wiretapping cannot be”in the ordinary course of law enforcement”unless there is express notice to the peoplewhose conversations are being listened to. Thestatute does not say this, and it cannot beright. If there is actual notice, as in UnitedStates v. Sababu, 891 F.2d 1308, 1329 (7th Cir.1989), there will normally be implied consent.United States v. Workman, 80 F.3d 688, 692-94 (2dCir. 1996); United States v. Van Poyck, 77 F.3d285, 292 (9th Cir. 1996); United States v. Horr,963 F.2d 1124 (8th Cir. 1992); Griggs-Ryan v.Smith, 904 F.2d 112, 116 (1st Cir. 1990); UnitedStates v. Amen, 831 F.2d 373, 379 (2d Cir. 1987).So if the “ordinary course” exclusion requiredproof of notice, it would have no function in thestatute because there is a separate statutoryexclusion for cases in which one party to thecommunication has consented to the interception.18 U.S.C. sec. 2511(2)(c). In United States v.Daniels, 902 F.2d 1238, 1245 (7th Cir. 1990),which dealt with the recording of prisoners’calls–and incidentally questioned whetherassuming a risk of being overheard is the same asconsenting to being overheard–we made clear thatthe ordinary-course exclusion has its own domain.What that domain is, however, is a bit obscure. Investigation is within the ordinary course oflaw enforcement, so if “ordinary” were readliterally warrants would rarely if ever berequired for electronic eavesdropping, which wassurely not Congress’s intent. Since the purposeof the statute was primarily to regulate the useof wiretapping and other electronic surveillancefor investigatory purposes, “ordinary” should notbe read so broadly; it is more reasonablyinterpreted to refer to routine noninvestigativerecording of telephone conversations. (Thisinterpretation may have much the same practicaleffect as the interpretation mentioned earlier inwhich “ordinary course” refers to recording callson one’s own line; for ordinarily when policerecord calls as part of an investigation they arerecording calls on someone else’s line.) Suchrecording will rarely be very invasive ofprivacy, and for a reason that does after allbring the ordinary-course exclusion rather closeto the consent exclusion: what is ordinary is aptto be known; it imports implicit notice. Torecord all calls to and from a police departmentis, for the reasons explained earlier, a routinepolice practice. If “ordinary course” of lawenforcement includes anything, it includes that.Jandak v. Village of Brookfield, 520 F. Supp.815, 821-25 (N.D. Ill. 1981); cf. United Statesv. Daniels, supra, 902 F.2d at 1245. The sparsityof case law on the question suggests not that theprinciple is dubious but that it is too obviousto have incited many challenges. What would not be routine would be if thepolice, in order to trick people into makingdamaging admissions over the phone, announcedthat calls to and from the police department werenot being recorded, and then recorded themanyway. Such a scheme would not be in the”ordinary” course of law enforcement; it would beextraordinary. Title III does not forbid allnonconsensual electronic eavesdropping, ofcourse, but it does require a warrant forelectronic eavesdropping that is not within oneof the exclusions. 18 U.S.C. sec. 2516; UnitedStates v. Cunningham, 113 F.3d 289, 293-95 (1stCir. 1997). In the absence of a warrant, thepractice that we have just described would not(if we set to one side the possibility thatanything a subscriber does on his own line is”ordinary”) be protected by the law-enforcementexemption. See In re State Police Litigation, 88F.3d 111, 121, 126 (2d Cir. 1996). The boundaryis between routine noninvestigative uses ofelectronic eavesdropping and its use either as atool of investigation (which requires a warrant)or as a device for intimidation, suppression ofcriticism, blackmail, embarrassment, or otherimproper purposes. See United States v. Harpel,493 F.2d 346, 351-52 (10th Cir. 1974). The plaintiffs charged, but the evidence did notcompel the jury to find, that the defendantscrossed this boundary. Remember that the decisionto tap 338-7799 was precipitated by an officialuse of the line which showed that it had been amistake to leave it untapped. Rather than beingoutside the ordinary course of law enforcement,the decision brought the line within that course.That personal as well as official calls were madeon the line is irrelevant; all employees makepersonal calls on company phones; if all thelines are taped, as is the ordinary practice ofpolice departments, then the recording ofpersonal as well as of official calls is withinthe ordinary course. Although eventually therecording of calls on 338-7799 “caught” aplaintiff criticizing another member of theforce, the purpose of recording calls on the linewas not (or so at least a reasonable jury couldfind) to intimidate the people using the line.The invasion of privacy was regrettable, but ifall Congress had cared about was the protectionof privacy it would not have written an exceptionfor electronic eavesdropping in the ordinarycourse of law enforcement into the statute; itwould in every case have required consent–and ofboth parties to the conversation, as in somestate statutes, rather than just of one party. The plaintiffs also complain about the dismissalof the City of Woodstock as a defendant, whichwas, however, proper, because Title III does notallow for suits against municipalities. 18 U.S.C.sec. 2510(6). They also challenge theinstructions. Rather than instructing the jurythat it must decide whether the recording ofcalls on 388-7799 was within the ordinary courseof law enforcement, the judge instructed it todecide whether the taping had been done”secretly.” The plaintiffs did not object to theinstruction when given, and so will not be heardto complain about it now, Fed. R. Civ. P. 51;Vaughn v. King, 167 F.3d 347, 353 (7th Cir.1999); Knox v. Indiana, 93 F.3d 1327, 1333 (7thCir. 1996); Samara Bros., Inc. v. Wal-MartStores, Inc., 165 F.3d 120, 130 (2d Cir. 1998)–especially since the instruction was morefavorable to them than the law. Taping could besaid to be done “secretly” if the persons whoseconversations are taped are not told about it,and so understood the instruction collapsed theordinary course of law enforcement exclusion intothe consent exclusion. “Secretly” also connotes,however, like “surreptitiously,” which the judgereplaced in the instructions with “secretly” lestsome jurors not know what “surreptitiously”means, doing something sneakily, implying apurpose to trap. Some district court cases saythat the ordinary-course defense does not extendto “surreptitious” taping, e.g., Abbott v.Village of Winthrop Harbor, 1998 WL 433772, at*11 (N.D. Ill. 1998); George v. Carusone, 849 F.Supp. 159, 164-65 (D. Conn. 1994), but this is apotentially misleading usage and should beavoided. The plaintiffs challenge the district court’srefusal to certify the suit as a class action.The challenge is mysterious on two grounds.First, it is impossible to see how the plaintiffswould have been better off at trial had the casebeen litigated as a class action. Class actionsare rarely tried, but when they are the trialproceeds the same way it does in an ordinarycase–there are no special trial procedures forclass actions as such, though if the suit isparticularly complex, as some nonclass actionsare and some class actions, including this one,are not, the ordinary trial procedures may haveto be modified. Fed. R. Civ. P. 23(d)(1); Watsonv. Shell Oil Co., 979 F.2d 1014 (5th Cir. 1992).We have never before heard it argued by aplaintiff who lost at trial that he would havewon had his suit been certified as a classaction. Second, it makes no sense for a losing party totake an unconditional appeal from a refusal tocertify his case as a class action. For if thecourt of appeals affirms the merits judgment andreverses the denial of class certification, theeffect will be to extinguish the rights of allthe class members who had not opted out of thelitigation. Robinson v. Sheriff of Cook County,167 F.3d 1155, 1157-58 (7th Cir. 1999), and casescited there. The wise plaintiff will either letsleeping dogs lie, or make his appeal from thedenial of class certification conditional on thecourt of appeals’ reversing the merits judgment.Cf. Council 31 v. Ward, 978 F.2d 373, 380-81 (7thCir. 1992). It is true that if he tries thelatter tack, he may be met by the rule againstone-way intervention in class actions, on whichsee Fed. R. Civ. P. 23(c); Advisory CommitteeNotes to 1966 Amendment, Subdivision (c)(3);Premier Electrical Construction Co. v. NationalElectrical Contractors Ass’n, Inc., 814 F.2d 358,362-67 (7th Cir. 1987). The rule bars potentialclass members from waiting on the sidelines tosee how the lawsuit turns out and, if a judgmentfor the class is entered, intervening to takeadvantage of the judgment. But the way Rule 23(c)prohibits this practice is by requiring thedistrict judge to make an early determinationwhether the suit is to proceed as a class actionand who shall be bound by the judgment as membersof the class. The rule does not appear to beaddressed to the case in which classcertification is denied; and anyway that is acase in which the defendants can protectthemselves against “one-wayness” by filing across-appeal challenging the denial of classcertification in order to bind unnamed classmembers to the judgment should it be affirmed.The defendants did not do this here. Since theplaintiffs, having lost on the merits in thiscourt, cannot possibly benefit from classcertification, and the defendants are not seekingit, we shall treat the issue as moot, and so notpursue further the question whether a conditionalappeal from the denial of class certificationviolates the rule against one-way intervention inclass actions. Rule 68 of the Federal Rules of Civil Procedureauthorizes a defendant to make an offer ofjudgment before trial. A plaintiff who turns downthe offer and then does worse at trial has to paythe defendant’s costs (and his own). Does worse,but still wins; for if he loses, he would have topay the defendant’s and his own costs anyway.Rule 68 bites only when the plaintiff wins butwins less than the defendant’s offer of judgment.The defendants here offered each of theplaintiffs $2,000 under Rule 68 but made theoffer conditional on all the plaintiffs’accepting it. Some did accept the offer but notall and so the offer lapsed. The plaintiffsargued that conditioning the offer on acceptanceby all of them was invalid and that the properremedy was to make the defendants pay each of theplaintiffs who tried to accept the offer the$2,000. The district judge agreed that thecondition was invalid but he thought this madethe offer inoperative, and so he refused toenforce it. The defendants argue that thecondition was valid and therefore the offer wasnot validly accepted by the plaintiffs who triedto do so. Thus both sides disagree with thejudge’s invalidating the offer, though thedefendants support his bottom line, since even iftheir offer was invalid, as the judge thought,and so ineffective to shift costs if theplaintiffs won (but won less than the offer), theplaintiffs lost and so there was no costshifting. We cannot find anything in the rule, or the caselaw, to support the view that the condition whichthe defendants imposed–all the plaintiffs mustaccept the offer of judgment for it to beeffective–is invalid, or if it is that the offeris therefore enforceable. The only appellate casewe have found upheld such a condition, Lang v.Gates, 36 F.3d 73, 75 (9th Cir. 1994), and insupport of it we note that since the purpose ofan offer of judgment is to settle the case inadvance of trial, conditioning it on acceptanceby all plaintiffs may be necessary to head offthe trial. Especially where there are manyplaintiffs, which can create a serious holdoutproblem. Suppose the offer of judgment had beenunconditional and 62 of the 63 plaintiffs hadaccepted it. The sixty-third would be in aposition to extract a handsome settlement offerfrom the defendants, who otherwise would have toincur the expense of a trial. The defendantswould have spent $124,000 (62 x $2,000) to averta trial, and surely would be willing to spendanother $10,000, say, to achieve that objective.Knowing from this example that the best positionto be in is that of the holdout, the otherplaintiffs–those who we assumed would haveaccepted the defendants’ offer–would in facthave been reluctant to accept it. Each would havehad an incentive to hang back in the hope thatthe others would accept it. This is why thedefendants’ form of offer in this case promotedrather than retarded the objectives of Rule 68;it made it less likely that the case would go totrial. Against this it has been argued that ifdifferent plaintiffs value the case differentlythe defendant can be sure that his offer will beturned down and he will avoid having to pay thecosts of at least some of the plaintiffs, andthat this is unfair. See Tocwish v. Jablon, 183F.R.D. 239 (N.D. Ill. 1998), and cases citedthere discussing state-law counterparts to Rule68. Suppose plaintiffs A and B value their claimat $1,500, and plaintiff C values his claim at$2,500. Then the defendant’s $2,000 offer will besure to be rejected if conditioned on unanimousconsent, and assuming the defendant guessed rightand the plaintiffs win $2,000 apiece at trial, hewill avoid paying A’s and B’s costs, even thoughthey would have accepted his offer had he notimposed the unanimity condition. But A’s and B’s real quarrel in such a case, itseems to us, would be with the asymmetry builtinto Rule 68: only a defendant can make asettlement offer that (if not accepted and theother party does worse than the offer) will let alosing party out of having to pay costs. Aplaintiff has no right to demand a Rule 68 offerand therefore no right to demand that thedefendant configure the offer in a way that willassure its acceptance. Proposals to “symmetrize”Rule 68 have been made, see, e.g., Committee onRules of Practice and Procedure, “PreliminaryDraft of Proposed Amendments to the Federal Rulesof Civil Procedure,” 102 F.R.D. 407, 432-37(1984); Geoffrey P. Miller, “An Economic Analysisof Rule 68,” 15 J. Legal Stud. 93, 123-25 (1986),but not adopted. A better point for the plaintiffs than thepossibility of their having varying estimates ofthe value of the suit is the possibility alreadydiscussed of holdout behavior by one of theplaintiffs, but now directed at extractingconcessions from the other plaintiffs rather thanfrom the defendants. Suppose that 62 of the 63plaintiffs are eager to accept the defendant’srule 68 offer, but the sixty-third balks unlessthe other plaintiffs will agree to give him 10percent of their share of the settlement. Itwould be odd if, negotiations breaking down, theplaintiffs who wanted to accept the defendant’soffer would be barred from obtaining costs shouldthey prevail at trial. They could not enforce theoffer, because they could not accept it inaccordance with its condition of unanimity; butit can be argued that the conditional offer,though valid, should be ineffectual to block theplaintiffs who had signified their desire toaccept it from obtaining costs. That is notargued here (costs are not in issue, as we saw),and so we need not attempt to resolve the issue.The plaintiffs are seeking to enforce an offerthat they were precluded from accepting by thenonfulfillment of the unanimity condition, andthis they cannot do. So we find no basis for disturbing the judgment.But we point out that the plaintiffs’ side of thecase has not lost utterly. (815) 338-7799 is nolonger a recorded police line; it is now thephone number of the plaintiffs’ lawyer. Affirmed.
Charles Amati, et al., Plaintiffs-Appellants, v. City of Woodstock, et al., Defendants-Appellees. Nos. 98-2680 and 98-2681 United States Court of Appeals for the Seventh Circuit Appeals from the United States District Court for theNorthern District of Illinois, Western Division. Nos. 92 C 20347 & 94 C 50235–Philip G. Reinhard, Judge. Argued February 26, 1999–Decided May 4, 1999 Before Posner, Chief Judge, and Cudahy and Rovner,Circuit Judges.
