In a recent decision, Lawlor v. North American Corporation of Illinois, the Illinois Supreme Court declared that the state would recognize the tort of inclusion upon seclusion. 2012 IL 112530. This tort, which originated from a right of privacy, is one of the four branches of the tort of invasion of privacy found in the Second Restatement of Torts. In Lawlor, a female salesperson left her job at North American to join a competitor, Shamrock Companies. In an effort to discern whether the salesperson, Lawlor, was violating her noncompete agreement (an agreement which restricts the ability of a former employee to work for a competitor, share trade secrets, etc), North American hired a private investigation firm. North American told the firm that it should obtain Lawlor’s phone records so that North American could determine whether Lawlor was improperly communicating with North American customers. North American also provided the private investigators with Lawlor’s date of birth, social security number, and home and cell numbers. Subsequently, the private investigators hired another company to obtain the records. When Lawlor discovered she was being watched and her phone records had been improperly obtained, she sued North American for the tort of inclusion upon seclusion.
Ultimately, the Supreme Court held that, despite North American’s claims that it could not be responsible for the illegal actions of third parties, North American entered into an agency relationship with the private investigation firm. Therefore, North American was responsible for the actions that the firm, and the firm’s subcontractor, took on North American’s behalf. Moreover, since North American specifically requested that the investigators obtain phone records and provided the investigators with all of the information necessary to obtain the records, North American endorsed the illegal behavior.
Plaintiffs seeking relief under the tort of seclusion upon intrusion in Illinois may be entitled to compensatory damages, as well as punitive damages, subject to review by the presiding judge.