United States District Court, N.D. Illinois, Eastern Division
July 19, 2004.
DIRECTV, INC., Plaintiff,
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.
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,
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
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 contracted, not
expanded, the class of section 2520 defendants, the Fourth
Circuit's holding that violations of section 2512 are not
actionable under section 2520 is still sound.
Our analysis echoes that of the Eleventh Circuit in DirecTV,
Inc. v. Treworgy, No. 03-15313, 2004 WL 1317849 (11th Cir.
June 15, 2004), a case decided just last month. In Treworgy, as
in this case, DirecTV sought to recover damages under section
2520 for the defendant's alleged violation of section 2512. The
plain language of the statute, the Eleventh Circuit said,
precluded such a claim:
[S]ection 2520(a) properly defines both the victims
for whose benefit the remedy exists and the offenders
for whom liability is owed. The plaintiff is "any
person whose wire, oral, or electronic communication
is intercepted, disclosed, or intentionally used in
violation of this chapter" 18 U.S.C. § 2520(a). The
defendant is "the person or entity which engaged in that
violation." Id. The phrase "which engaged in that
violation" makes apparent the intent of Congress to
limit liability to a certain class of defendants.
18 U.S.C. § 2520(a) (emphasis added). Congress chose to
confine private civil actions to defendants who had
"intercepted, disclosed, or intentionally used [a
communication] in violation of . . . chapter [119 of
title 18]." Id.
2004 WL 1317849 at *3. Like the Treworgy court, we find no
support in the statute for plaintiff's claim.
The fact that plaintiff alleges defendant violated both
sections 2511 and 2512 does not change the result. Illegal
interception, a violation of section 2511, is the touchstone of a
section 2520 claim; it requires nothing more and can survive with
nothing less. Plaintiff has alleged a section 2520 claim
predicated on defendant's alleged interceptions in Count II of
the complaint. The fact that defendant is alleged to have
violated section 2511 by using a device prohibited by section
2512 does not transform the section 2512 violation into an
In short, this Court, like the Fourth and Eleventh Circuits, is
not persuaded that section 2520 creates a cause of action against
violators of section 2512 of the Wiretap Act. Thus, the claim
plaintiff asserts against defendant in Count III of the complaint
In Count V, plaintiff alleges that defendant is liable for
conversion. To state a claim for conversion, plaintiff must
allege that he has an absolute right to immediate possession of
certain property, that he made a demand for possession and that
defendant wrongfully assumed control or dominion over the
property. Cirrincione v. Johnson, 703 N.E.2d 67, 70 (Ill.
1998). Though plaintiff has made the requisite allegations,
defendant contends that its claim must be dismissed because: (1)
intangible property cannot, as matter of law, be the subject of a
conversion claim; and (2) even if it could, plaintiff has not
alleged that defendant's interception of the signals caused
plaintiff to lose all control over them. Whether intangible property can be converted is an unsettled
question in Illinois. The Illinois Supreme Court has not squarely
decided the issue, though it has stated that "an action for
conversion [ordinarily] lies only for personal property which is
tangible." In re Thebus, 483 N.E.2d 1258, 1260 (Ill. 1985)
(internal quotation marks and citation omitted). Moreover, in at
least one case, the Illinois Appellate Court has interpreted that
statement as an absolute prohibition on conversion claims for
intangibles: "Our supreme court has stated that an action for
conversion lies only for personal property that is tangible or at
least represented by or connected with something tangible."
Bilut v. Northwestern Univ., 692 N.E.2d 1327, 1334 (Ill.App.
Ct. 1998) (citing Thebus). However, the appellate court also
has, on more than one occasion, refuted that notion. See
Stathis v. Geldermann, Inc., 692 N.E.2d 798, 807 (Ill.App. Ct.
1998) ("In this State, . . . parties may recover for conversion
of intangible assets."); Conant v. Harris, 520 N.E.2d 757, 763
(Ill.App. Ct. 1987) (upholding conversion claim based on theft
of confidential information).
Though the question is a close one, we think the latter cases
represent the better approach. As our court of appeals noted in
FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300 (7th
The conception that an action for conversion lies
only for tangible property capable of being
identified and taken into actual possession is based
on a fiction on which the action of trover was
founded namely, that the defendant had found the
property of another which was lost and that such
conception has become, in the progress of law, an
unmeaning thing which has been discarded by most
Id. at 304-05 (internal quotation marks, alterations and
citations omitted). Indeed, the court said, "the modern trend of
state law" is to protect intangible business assets through
conversion actions. Id. at 305. Plaintiff alleges that its
satellite signals are the primary asset of its business. (Compl.
¶¶ 2-5.) It should be able to redress the theft of that asset,
regardless of the form it takes. We also not believe that defendant's failure to exercise
exclusive control over the signals defeats the conversion claim.
The essence of conversion is "the exercise of control by the
defendant over the chattel in a manner inconsistent with the
plaintiff's right of possession." Dickson v. Riebling,
333 N.E.2d 646
, 648 (Ill.App.Ct. 1975); see FMC, 915 F.2d at 304
(stating that "[t]he gist of conversion is the interference with
control of the property") (internal quotation marks, citation and
emphasis omitted). Because defendant's alleged interception of
plaintiff's signals was inconsistent with plaintiff's ownership
rights, plaintiff's conversion claim may stand
For the reasons stated above, defendant Adrian's motion to
dismiss Counts III and V of the complaint is granted in part and
denied in part. The motion is granted as to the claim asserted in
Count III, which is dismissed with prejudice. The motion is
denied as to the claim asserted in Count V.
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