Whatever happened to "Don't make a federal case out of it?"

How many of us still believe that the customer service representative on the other end of the line when we call late at night with a problem is located in the United States?  Sure, we don't dial an international number, but do we really think our [insert consumer products or services company] maintains a staff of American workers round the clock to address our concerns? 

Well, according to a recent lawsuit filed in the federal district court here in Washington, Bank of America's customers do.  Plaintiffs allege in the putative class-action complaint, filed just last week, that BoA misleads customers into believing that its call center agents are located here when, in reality, they reside in India, the Philippines, Costa Rica and possibly other countries.

With apologies to Captain Renault of the 1942 film Casablanca, "I'm shocked, shocked to find there is off-shoring going on in here."

Seriously, this is 2011, not 1942 (or even 1992) - do plaintiffs truly believe anyone was actually misled by what BoA was doing?

Well, although plaintiffs imply deception, they don't rely on it.  Instead, they have asserted a - to me - quite novel theory that the offshoring of financial information per se violates the Right to Financial Privacy Act. 

What is the RFPA, you ask?  Well, it is a federal statute that dates back to the late 1970s and stands for the now unremarkable proposition that customers have a right to privacy in their financial records. More specifically, unlike the much more recent Gramm-Leach-Bliley (which deals with disclosures to commercial interests), the RFPA protects against unauthorized release of financial records to the federal government.   ("Unauthorized" in this context means without consent or otherwise as authorized by lawful order, process, etc.)

What does that have to do with offshoring, you ask?

Well, according to plaintiffs:

·        Everyone knows that the federal government pervasively intercepts and searches international electronic transmissions, unfettered by constitutional constraint;

·        By transmitting customers' financial information overseas, BoA has exposed its customers financial information to that government scrutiny and to scrutiny by foreign governments, in violation of the RFPA's prohibition on provision of "access" to financial information without authorization.

Conceptually, this theory does have its attractions, but I wonder precisely how plaintiffs will establish this common assumption that everything sent abroad is being searched or, more precisely, that putative class members' records were searched, and that this supposed searching constitutes the provision of "access" in violation of the RFPA.  

After all, the U.S. government is permitted to access and search records of U.S. citizens under a variety of conditions and circumstances.   And the Foreign Intelligence Surveillance Act applies to surveillance of U.S. citizens whether located here or abroad.  Although the FISA is hardly the poster child for privacy protection, the bottom line is that in 2011, the "right" to privacy vis a vis the government is a very conditional one.  The fact that a U.S. account-holder's financial records may have been transmitted overseas does not seem fundamentally to alter that equation.

Moreover, the RFPA only speaks of the United States government, not governments of foreign countries, so even if transfer of financial information to BoA overseas centers allowed for wanton access by other countries, that would not appear to violate the statute.

Most importantly, the mere possibility that someone's records may be searched seems a thin reed on which to base a federal claim.  Even if the overseas transmission created a greater potential for access, absent evidence that access actually took place, certification of  a viable class seems dubious.

Plaintiffs do not rest their case entirely on the RFPA.  They also assert violations of the DC Consumer Protection Act and certain tort theories.   The DC Consumer Protection Act allows for recovery if the statutory elements are met regardless of whether any "consumer is in fact misled, deceived or damaged . . ."  That, in itself, may warrant another blog post!  But those claims only support a DC, not a nationwide, class, and it is the RFPA claim that is of greatest interest and - given the pervasive nature of offshoring by our country's financial institutions - potential importance.

Bottom line:  I give credit to plaintiffs' counsel in the case for legal creativity, but if this case progresses, I truly will be "shocked, shocked" at what makes a federal case in 2011.