Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DIRECTV, INC. v. ADRIAN

July 19, 2004.

DIRECTV, INC., Plaintiff,
v.
ROBERT ADRIAN, Defendant.[fn1]



The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge

*fn1 The other individuals plaintiff named as defendants were severed from this suit on May 17, 2004.

MEMORANDUM OPINION AND ORDER

Plaintiff has sued defendant for, among other things, his alleged violations of the Wiretap Act, 18 U.S.C. § 2510, et seq. Defendant has filed a Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss Counts III and V of the complaint. For the reasons set forth below, the motion is granted in part and denied in part.

  Background

  Plaintiff is a California-based company that distributes satellite television broadcasts across the United States. (Compl. ¶ 2.) To prevent unauthorized reception of its broadcasts, plaintiff uses encryption technology to scramble the signals. (Id. ¶ 3.) The signals are unscrambled by a device plaintiff calls an "Access Card," which is installed in the satellite receivers of its customers. (Id. ¶¶ 3-4.) Plaintiff alleges that defendant Adrian purchased and used illegal pirate devices, which unscrambled plaintiff's signals and gave him access to plaintiff's programming free of charge. (Id. ¶¶ 5-6, 17.)

  In Count III of the complaint, plaintiff seeks damages from Adrian for his alleged possession of the pirating devices under 18 U.S.C. § 2512, 2520. In Count V, plaintiff seeks damages from Adrian for his alleged conversion of plaintiff's property. Adrian has moved to dismiss both counts, claiming that neither states a claim on which relief can be granted.

  The Legal Standard

  On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

  Discussion

  In Count III, plaintiff alleges that defendant violated 18 U.S.C. § ("section") 2512, which prohibits knowing and intentional possession of any device that is primarily used for "surreptitious interception of wire, oral, or electronic communications." 18 U.S.C. § 2512(1)(b). Plaintiff seeks damages for that violation through section 2520, which provides:
[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person of entity, other than the United States, which engaged in that violation such relief as may be appropriate. 18 U.S.C. § 2520(a). Defendant contends that the private right of action created by section 2520 extends only to violations of section 2511, which prohibits the intentional interception of electronic communication, not to violations of section 2512.
  Defendant's argument is based primarily on the Fourth Circuit's decision in Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985). In Flowers, a woman whose husband had taped her telephone conversations sought damages under section 2520 from the company that sold him the recording device. A jury awarded her substantial damages on the claim, and the company appealed.

  The Fourth Circuit reversed. In its view, the statute provided a cause of action only against those who illegally intercept communications (i.e., violators of section 2511), not against those who manufacture or possess a pirating device (i.e., violators of section 2512). Id. at 589.

  Plaintiff says Flowers is distinguishable from this case in two respects. First, the Flowers court was interpreting a different version of section 2520, which said: "Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall . . . have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications." Id. at 588 n. 2. Because the statute now says that anyone whose communication is intercepted "in violation of this chapter may . . . recover [damages] from the person . . . [who] engaged in that violation," plaintiff argues, a violation of any section of the Wiretap Act can be redressed through section 2520. Second, unlike the defendant in Flowers, the defendant in this case is alleged to have violated both sections 2511 and 2512. Thus, plaintiff says, it states a viable claim even under the Flowers court's logic.

  Though there are a number of district court decisions that support plaintiff's argument, see, e.g., DirecTV, Inc. v. Dyrhaug, No. 03 C 8389, 2004 WL 626822 (N.D. Ill. Mar. 26, 2004); DirecTV, Inc. v. Gatsiolis, No. 03 C 3534, 2003 WL 22669033 (N.D. Ill. Nov. 10, 2003), the language of the statute does not. Section 2520 permits any person "whose wire, oral, or electronic communication is intercepted . . . in violation of this chapter" to sue the person who "engaged in that violation." Read in context, the phrase "engaged in that violation" refers to the illegal interception or use. Thus, the plain language of that section limits the class of plaintiffs to those whose communications have been illegally intercepted, and the class of defendants to those who do the illegal intercepting.

  Moreover, though the statute has changed since Flowers was decided, the vitality of that case has not. In its Flowers-era incarnation, section 2520 permitted those whose communications were "intercepted . . . in violation of this chapter" to sue those "who intercept[ed], disclose[d], or use[d], or procure[d] any other person to intercept, disclose, or use such communications." Flowers, 773 F.2d at 588 n. 2. In other words, the statute imposed liability not only on those who did the intercepting, but on those who procured the interceptions as well. Subsequently, Congress removed the reference to procurers from section 2520. Because that amendment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.