United States District Court, C.D. Illinois, Peoria Division
For Jamison J Shefts, an individual, Plaintiff: Lane G Alster, Robert M Riffle, ELIAS MEGINNES RIFFLE & SEGHETTI, Peoria, IL.
For John Petrakis, an individual, Defendant: George Mueller, MUELLER ANDERSON PC, Ottawa, IL; J Reed Roesler, Jay H. Scholl, DAVIS & CAMPBELL LLC, Peoria, IL; Jeffrey Alan Ryva, HUSCH BLACKWELL SANDERS LLP, Peoria, IL; Stephen M Buck, HUSCH BLACKWELL LLP, Peoria, IL.
For Kevin Morgan, an individual, Heidi Huffman, an individual, Defendants: George Mueller, MUELLER ANDERSON PC, Ottawa, IL; J Reed Roesler, Jay H. Scholl, DAVIS & CAMPBELL LLC, Peoria, IL; Jeffrey Alan Ryva, Stephen M Buck, HUSCH BLACKWELL SANDERS LLP, Peoria, IL.
For Access2Go Inc, Defendant: Stephen M Buck, LEAD ATTORNEY, Jeffrey Alan Ryva, HUSCH BLACKWELL SANDERS LLP, Peoria, IL.
For John Tandeski, Material Witness: Jeffrey B Rock, LEAD ATTORNEY, Julie L Galassi, HASSELBERG ROCK BELL & KUPPLER, Peoria, IL.
JOE BILLY McDADE, United States Senior District Judge.
ORDER & OPINION
This matter is before the Court on Plaintiff's brief to proceed with the remaining claim within Count III of Plaintiff's First Amended Complaint under the Stored Communications Act (" SCA" ). (Doc 270). Plaintiff originally claimed that Defendants violated the SCA by accessing his Access2Go email, his Blackberry text messages, and his Yahoo! email, but the Court already determined that Plaintiff could not recover for Defendants' conduct as to the Access2Go email and Blackberry text messages. (Docs. 249 & 268). On February 20, 2013, the Court issued an Order resolving a number of questions relating to the calculation of damages for remaining claims, should liability be found. (Doc. 269). Because it appeared that
Plaintiff dropped the SCA claim regarding the Yahoo! email messages in his initial brief on damages, the Court did not address those damages in the previous Order. (Doc. 269; Doc. 261 at 8). Plaintiff has since notified the Court of his intent to pursue the Yahoo! SCA claim; thus, the Court will address the remaining question raised in Defendants' brief on damages asking " whether, under the SCA, the fact that Plaintiff does not seek actual damages will prevent his recovery of statutory damages." (Doc. 270; Doc. 263 at 5). As noted in the last Order, any assumptions made do not prejudice Defendants' arguments against liability as the Court assumes that the jury will find in Plaintiff's favor for the purpose of analysis only.
I. Does the fact that Plaintiff does not seek actual damages under the SCA prevent his recovery of statutory damages?
In his brief responding to Defendants' initial brief on damages, Plaintiff asserts that the SCA's language permits him to recover statutory damages as an alternative to actual damages, and thus, that his decision not to seek actual damages does not prevent his recovery of statutory damages. (Doc. 264 at 2). The Court agrees with Plaintiff's position. Defendants' argument relies heavily on Van Alstyne v. Electronic Scriptorium, Ltd., in which the Fourth Circuit held that " the plain language of [18 U.S.C.] § 2707(c) unambiguously requires proof of actual damages as a prerequisite to recovery of statutory damages." 560 F.3d 199, 206 (4th Cir. 2009). The Van Alstyne court based this interpretation on a prior Supreme Court decision, in which the Supreme Court interpreted language in the Privacy Act that was " substantively identical" to § 2707(c) to limit a Plaintiff's recovery in this way. Id. at 204-06 (citing Doe v. Chao, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004)).
As noted by the Southern District of New York in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, though, there are arguments suggesting that this Supreme Court precedent should not control the interpretation of § 2707(c), as several other district courts have also concluded. 759 F.Supp.2d 417, 427 (S.D.N.Y. 2010) (" Doe is dubious authority for the proposition that Section 2707(c) does not mean what it provides, recovery of 'minimum statutory damages of $1,000'" (quoting Freedman v. Town of Fairfield, No. 3:03CV01048, 2006 WL 2684347, at *3 (D. Conn. Sept. 19, 2006))); In re Hawaiian Airlines, Inc., 355 B.R. 225, 230 (D. Haw. 2006) (noting that the structures of the Privacy Act and the SCA are not similar enough for the former to be directly applicable to the latter); Cedar Hill Assocs., Inc. v. Paget, No. 04 C 0557, 2005 WL 3430562, at *2 (N.D. Ill.Dec. 9, 2005) (holding that 18 U.S.C. § 2701 et seq. does not require actual damages as a precursor to recovery).
First, the decision in Van Alstyne is not based on a Supreme Court interpretation of the SCA, but of the earlier Privacy Act. In the Doe case itself, the Supreme Court distinguished the SCA as irrelevant to the interpretation of the Privacy Act when it rejected the plaintiff's attempt to analogize the two in support of his argument that the Privacy Act authorized liquidated damages remedies similarly to the SCA. Doe, 540 U.S. at 626. The Court refused to draw a connection between the two statutes, explicitly stating that " the trouble with Doe's position is its reliance on the legislative histories of completely separate statutes passed well after the Privacy Act." Id. The court in Van Alstyne, nonetheless, was not persuaded by this ...