A state trial judge has allowed Nicor Gas Co. to submit a sample of recorded customer calls in an Illinois consumer class action after concluding that doing so would not violate an Illinois privacy statute.

Adam Levitt, head of the consumer practice group at Grant & Eisenhofer, filed the case on behalf of Illinois customers who accused Nicor of misrepresenting the benefits of a gas line repair warranty service known as ComfortGuard. During discovery, Nicor, now part of AGL Resources Inc., sought to introduce recorded calls that its representatives made to customers as a sampling of what its employees actually said to customers.

The plaintiffs, who have yet to win certification, have preferred to rely instead on sales scripts, which are more uniform than actual calls. They also argued that introducing the calls would violate the Illinois Eavesdropping Act because the statute prohibits telemarketing companies from divulging to third parties their calls with customers, even if they consented to being recorded for internal quality purposes.

On Tuesday, Cook County, Ill., Circuit Judge Mary Mikva, who heard arguments on the issue, disagreed with that position. She allowed Nicor to submit a sample of 400 recorded calls but also permitted the plaintiffs to file a motion to reconsider her decision within 21 days.

“I’m disappointed in the court’s interpretation of the Illinois Eavesdropping Act, but we’re confident that after we submit our supplemental briefing on the conditional consent issue, the absence of consumer consent to use these recorded calls for anything other than internal control purposes will be clear,” Levitt said.

Nicor had argued that the act doesn’t apply to conversations recorded with the consent of both parties.

“We are pleased with the Court’s ruling,” the company’s attorney, David Balser, a partner at Atlanta’s King & Spalding, wrote in an email to The National Law Journal. “Obviously concerned that lack of uniformity in the calls would create a predominance problem precluding class certification, the plaintiffs have concocted an argument that the recordings cannot be used under the Illinois Eavesdropping Act.”

Contact Amanda Bronstad at abronstad@alm.com.