United States District Court, N.D. Illinois, Eastern Division
JILL E. MAREMONT, Plaintiff,
SUSAN FREDMAN DESIGN GROUP, LTD. and SUSAN FREDMAN, Defendants.
OPINION AND ORDER
SARA L. ELLIS, District Judge.
While Defendants' media marketing director, Plaintiff Jill E. Maremont, was recuperating from an automobile accident, Defendants Susan Fredman Design Group, Ltd. ("SFDG") and Susan Fredman, allegedly accessed Maremont's Twitter and Facebook accounts without her permission and posted to these accounts in her absence. As a result, Maremont filed suit against Defendants alleging violations of the Lanham Act, 15 U.S.C. § 1125(a), the Stored Communications Act (the "SCA"), 18 U.S.C. § 2701 et seq., the Illinois Right of Publicity Act, 765 Ill. Comp. Stat. 1075 et seq., and the common law right to privacy. The Court previously granted summary judgment for Defendants on the Illinois Right of Publicity Act and common law right to privacy claims. Doc. 58. Defendants now seek summary judgment on the remaining federal claims . Because Maremont cannot establish damages under the Lanham Act, the Court grants summary judgment in favor of Defendants on Maremont's Lanham Act claim; however, the Court denies summary judgment on Maremont's SCA claim because Maremont raises genuine issues of material fact that preclude a grant of summary judgment.
SFDG is an interior design firm headquartered in Chicago and owned by Fredman, a licensed interior designer. Susan Rossie was the president of SFDG at all relevant times. Maremont was employed by SFDG as its Director of Marketing, Public Relations, and E-commerce. While in this position, Maremont was not a licensed interior designer and did no interior design work but nonetheless became well known in the Chicago design community. On her LinkedIn page, Maremont described her responsibilities at SFDG to include developing and conducting social media campaigns for SFDG on Facebook and Twitter. Because Maremont's annual compensation included a bonus contingent on SFDG's gross sales exceeding certain threshold levels, her social media efforts were in part intended to increase SFDG's sales so she could qualify for this bonus.
As part of a social media marketing campaign for SFDG, Maremont created a blog titled "Designer Diaries: Tales from the Interior, " which was hosted on SFDG's website. Maremont also had Twitter and Facebook accounts for her personal use as well as to promote SFDG. Maremont's Twitter account was in her name, @jmaremont, and by August 2009, had 1, 121 followers. Although Fredman states that she directed Maremont to open the Twitter account for SFDG, Maremont denies it. From these social media accounts, Maremont frequently posted links to SFDG's website and the Designer Diaries blog. By posting links to SFDG's website and blog, Maremont intended to increase SFDG's visibility on the internet, increase its gross sales, and, ultimately, add to her bonus.
Maremont created a Facebook page for SFDG at Fredman's request. Maremont opened SFDG's Facebook page through her personal Facebook account on February 17, 2009. In order to administer SFDG's page, the page administrator had to log on through his or her personal Facebook account. At the time she created the SFDG page, Maremont testified that she listed herself and Fredman as the administrators, and later, after Rossie opened a Facebook account, added Rossie as an administrator as well. Fredman and Rossie deny knowing of their administrator status, and Olivia Belmonti (nee Flink-Larsen), who replaced Maremont, states that Maremont was the only administrator and thus in order to make any changes to the SFDG Facebook page, she was required to first log into Maremont's personal Facebook account.
To keep track of the various social media campaigns she was conducting for SFDG, Maremont created an electronic spreadsheet in which she stored all account access information, including the passwords for her Twitter and Facebook accounts. This spreadsheet was created on an SFDG-owned computer and saved on the SFDG server. Although Maremont denies providing the spreadsheet to anyone and maintains that the electronic file folder containing the spreadsheet was locked, Laurice Shelven, an intern at SFDG from September 8, 2009 to December 30, 2009, states that Maremont provided her with the spreadsheet so she could assist Maremont in composing and publishing posts for the various SFDG social media campaigns. Belmonti states that when she replaced Maremont, she found the spreadsheet printed in a folder on Maremont's desk and could also access it electronically.
On September 15, 2009, Maremont and an SFDG co-worker were seriously injured in an automobile accident while on a work-related errand. Maremont suffered serious brain trauma and still suffers from post-concussion syndrome and post-traumatic stress disorder. After Maremont's accident, SFDG hired Belmonti on a temporary basis to conduct its social media campaigns in Maremont's absence. Belmonti and Shelven used the access information provided on the spreadsheet to access and continue the various social media campaigns Maremont had set up for SFDG.
Specifically, Defendants made seventeen posts to Maremont's Twitter account during her absence from SFDG. The first post, on September 21, 2009, linked to an SFDG blog written by Fredman explaining Maremont's accident and announcing that, during her absence, Belmonti would assume Maremont's role as a guest blogger. The remaining tweets promoted SFDG and in some cases provided links to SFDG's blog or website.
At the same time, between September 23 and November 24, 2009, while Maremont maintains she was not accessing her Facebook page, five friend requests were accepted on her personal Facebook page. Additionally, on December 2, 2009, despite Maremont's insistence that she did not post anything to her Facebook page since the accident, a Facebook friend of hers posted "Good to see you sending facebook notices again Jill." Ex. D to Maremont Declaration at 48. Maremont, however, cannot identify any posts on her personal Facebook page that were made by Defendants, and it is unknown who accepted the friend requests on Maremont's behalf. Although Maremont's husband, Michael, admits to posting an update on Maremont's Facebook page under her name, he denies accepting any Facebook friend requests on her account. Fredman has denied accessing Maremont's personal Facebook page. Rossie has denied posting to or friending anyone on Maremont's personal Facebook page. Belmonti admits to accessing Maremont's personal Facebook page in order to access SFDG's Facebook page but denies that she or Shelven ever posted to or friended anyone on Maremont's personal Facebook page. Belmonti also states that, to her knowledge, no one at SFDG aside from Shelven and herself accessed Maremont's Twitter and Facebook accounts. Shelven states that "[a]t no time did I access or post on facebook pages outside of the accounts listed on the Social Media Campaigns' spreadsheet, and occasionally my own, " and "[a]t no time did I access or friend' anyone on any facebook page outside of the accounts listed on the Social Media Campaigns' spreadsheet, and occasionally my own." Ex. VII to Defs.' Mot. Summ. J., Declaration of Laurice Shelven ¶¶ 12-13.
Despite knowing Belmonti was acting as her temporary replacement, Maremont did not contact Belmonti to ask her to stop making Twitter or Facebook posts on Maremont's accounts. Maremont states that she told Fredman and Rossie that they were not authorized to access her personal Twitter and Facebook accounts and to stop posting updates to those accounts, but Fredman and Rossie deny that Maremont made any such requests. Ultimately, on December 11, 2009, Maremont and her husband changed the passwords to her Twitter and Facebook accounts. Thereafter, Defendants did not make any additional posts to these accounts.
On May 17, 2010, Maremont returned to work at SFDG on a part-time basis. On May 18, 2010, Maremont wrote Twitter and Facebook posts that linked to a May 17, 2010 entry on SFDG's blog in which she announced "Your Editor is Back!" In these posts, Maremont thanked her temporary replacements, Belmonti and Michelle Doorman, for their posts on the blog in her absence. Maremont's return to work was short-lived, however, as her doctor recommended that she stop work completely on June 1, 2010, due to the continued presence of her post-concussion syndrome symptoms. Maremont followed her doctor's recommendations and stopped working at SFDG.
On December 10, 2010, Maremont filed this lawsuit. On February 28, 2011, she sent a letter by certified mail to Rossie, announcing her intention to return to work part-time at SFDG on March 17, 2011. On March 8, 2011, SFDG's lawyer responded by letter to Maremont's attorneys advising them that SFDG had filled Maremont's position after her father had directed SFDG employees not to contact Maremont under any circumstances. By March 17, 2011, a public relations firm, Jo Chicago, had hired Maremont.
Maremont claims that Defendants' use of her Twitter and Facebook accounts has caused her emotional distress requiring psychiatric treatment and medication. She states she has recurring nightmares involving Fredman, which interfere with her sleep and affect her daily activities, and that she feels physically ill when Fredman's name is mentioned. Maremont's husband ...