Maremont v. Susan Fredman Design Group, Ltd. et al
Filing
164
Opinion and Order. Signed by the Honorable Sara L. Ellis on 3/3/2014: Mailed notice(rj, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JILL E. MAREMONT,
)
)
Plaintiff,
)
)
v.
)
)
SUSAN FREDMAN DESIGN GROUP, LTD. )
and SUSAN FREDMAN,
)
)
Defendants.
)
No. 10 C 7811
Judge Sara L. Ellis
OPINION AND ORDER
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 [126]. 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.
BACKGROUND 1
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 Ecommerce. 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
1
The facts set forth in this section are derived from the statements of fact submitted by the parties to the
extent they comport with Local Rule 56.1. They are taken in the light most favorable to Maremont, the
non-movant. The Court has considered the parties’ objections to the statements of fact and supporting
exhibits and included in this background section only those portions of the statements and responses that
are appropriately presented, supported, and relevant to resolution of the pending motion for summary
judgment. The Court notes that although Defendants cite to various exhibits that were used at
Maremont’s deposition in their statement of facts and response to Maremont’s statement of additional
facts, these exhibits were filed in connection with Defendants’ previous motion for summary judgment,
Doc. 39, and not this summary judgment motion.
2
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 (née 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
3
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.
4
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.
5
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. 2 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 and father corroborate that Maremont becomes emotionally upset at the mention of
SFDG or Fredman.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party
seeking summary judgment bears the initial burden of proving that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the
2
In her Local Rule 56.1 Statement of Additional Facts, Maremont relies in part on notes taken by her
psychiatrist, Dr. Lee S. Schwartz. Dr. Schwartz has not provided a declaration or an expert report and has
not been deposed. The Court has not considered his notes in addressing this motion for summary
judgment.
6
evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue
for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a
bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
ANALYSIS
I.
Lanham Act Claim
Maremont’s false endorsement claim involves “false representations concerning the
origin, association or endorsement of goods or services through the wrongful use of another’s
distinctive mark, name, trade dress or other device.” L.S. Heath & Son, Inc. v. AT & T Info. Sys.,
Inc., 9 F.3d 561, 575 (7th Cir. 1993). “False endorsement occurs when a person’s identity is
connected with a product or service in such a way that consumers are likely to be misled about
that person’s sponsorship or approval of the product or service.” Stayart v. Yahoo! Inc., 651 F.
Supp. 2d 873, 880 (E.D. Wis. 2009), aff’d, 623 F.3d 436 (7th Cir. 2010).
Defendants argue that Maremont does not have standing to bring her false endorsement
claim. This argument was previously rejected by the Court, Doc. 58 at 7–8, but Defendants
argue that the Court must reconsider this decision because the findings of fact in that opinion are
not binding on the Court here, see Doc. 125 (“[F]acts deemed admitted for purposes of any
previously-filed summary judgment motion will not be deemed admitted, on that basis alone,
with regard to any later-filed summary judgment motion.”). As the Court stated in its prior
summary judgment opinion, it deemed certain facts admitted based on Defendants’ failure to
respond to Maremont’s Local Rule 56.1 Statement of Additional Facts. Doc. 58 at 3. Thus,
7
reconsideration of the standing inquiry is appropriate here based on the more fully developed
record. See also Fed. R. Civ. P. 54(b) (the Court may revise its decisions at any time prior to the
entry of a final judgment). Nonetheless, even based on this more fully developed record,
viewing the facts in the light most favorable to Maremont, the Court adheres to its prior finding
that Maremont has standing to pursue her Lanham Act claim.
“[S]tanding to assert a [Lanham Act] claim is limited to a ‘purely commercial class of
plaintiffs.’” Stayart, 623 F.3d at 438 (quoting Berni v. Int’l Gourmet Rests. of Am., Inc., 838
F.2d 642, 648 (2d Cir. 1988)). Thus, a reasonable jury must be able to conclude from the facts in
the record that Maremont has a “commercial interest to protect.” Id. Although contested by
Defendants, Maremont alleges that she created her Twitter and Facebook accounts for her own
economic benefit, knowing that if she left her employment at SFDG, she could promote another
employer to her Twitter and Facebook followers. This following has, in the internet age, become
a marketable commercial interest. See Zoe Argento, Whose Social Network Account? A Trade
Secret Approach to Allocating Rights, 19 Mich. Telecomm. & Tech. L. Rev. 201, 221 (2013) (“A
social network account not only serves the worker’s interest by facilitating contact with her
network, but also helps the worker to build her reputation and market herself to potential
employers. Specifically, the social network account helps the worker to develop her ‘personal
brand’--the combination of her online image, reputation, and network.”). Maremont is not just
asserting a personal interest, like the plaintiff in Stayart or Nieman. Cf. Stayart, 623 F.3d at 438–
39 (plaintiff lacked standing where charitable activities she undertook could not be equated with
a commercial interest in protecting her name); Nieman v. Versuslaw, Inc., No. 12-3104, 2012
WL 3201931, at *5 (C.D. Ill. Aug. 3, 2012) (plaintiff lacked standing to bring Lanham Act claim
because “Plaintiff’s individual reputation in the insurance industry is not the commercial interest
8
the Lanham Act seeks to protect”). Nor is she claiming standing solely because she is known to
her Facebook friends or Twitter followers generally. Cf. Cohen v. Facebook, Inc., 798 F. Supp.
2d 1090, 1098 (N.D. Cal. 2011) (dismissing false endorsement claim where plaintiffs’ only
suggestion of a protectable economic interest was that they “are known to their own Facebook
friends,” which “does not rise to the level necessary to invoke the Lanham Act’s protection for
identities that are ‘akin to a trademark’”). Moreover, her interest is not merely hypothetical, as
she was actively using her Twitter and Facebook accounts—opened in her name—to promote
SFDG. Cf. Dovenmuehle v. Gilldorn Mortg. Midwest Corp., 871 F.2d 697, 700 (7th Cir. 1989)
(plaintiffs did not have standing to pursue Lanham Act claim where they did not engage in or
claim any present intention to operate a commercial activity under their family name); Stanfield
v. Osborne Indus., Inc., 52 F.3d 867, 873 (10th Cir. 1995) (“[T]he mere potential of commercial
interest in one’s family name is insufficient to confer standing.”). Although Defendants have
presented evidence that Maremont’s interest was tied to that of SFDG and thus cannot confer
standing, this is a disputed issue that must be left for the jury’s determination.
Defendants also argue that they did not violate the Lanham Act because, as the Court
understands it, the Twitter account was associated with SFDG, and not Maremont. Thus,
according to Defendants, after they made the Twitter post linking to Fredman’s blog entry that
described Maremont’s injury and Belmonti’s role as her temporary replacement, no one could
have been misled as to the origin of the subject Twitter posts. But Defendants’ initial premise is
faulty; the Twitter account was in Maremont’s name, not SFDG’s, and it would be reasonable to
conclude that posts made on that account were made by Maremont herself. Defendants did not
change the name of the Twitter account during Maremont’s absence and, indeed, even used the
first person in one Tweet made from Maremont’s account. See Ex. II-A to Defs.’ Mot. Summ. J.
9
at 5 (“So many design pubs are closing their doors, so I love the premiere issue of Lonny
magazine!”). When viewed in the light most favorable to Maremont, a jury could find from the
evidence in the record that Defendants committed a Lanham Act violation.
Finally, Defendants argue that summary judgment is warranted on the false endorsement
claim because Maremont has submitted no proof of cognizable damages. “In order to recover
damages for a purported Lanham Act violation, the plaintiff ‘must demonstrate that [she] has
been damaged by actual consumer reliance on the misleading statements.’” L.S. Heath & Son,
Inc., 9 F.3d at 575 (quoting Web Printing Controls Co. v. Oxy-Dry Corp., 906 F.2d 1202, 1205
(7th Cir. 1990)). Maremont must show that she “suffered actual injury, i.e., a loss of sales,
profits, or present value (goodwill),” Web Printing, 906 F.2d at 1205, or that Defendants were
unjustly enriched, Badger Meter, Inc. v. Grinnell Corp., 13 F.3d 1145, 1157 (7th Cir. 1994).
At her deposition, Maremont denied suffering any financial injury from Defendants’ acts
of accessing her Facebook and Twitter accounts and posting to her Twitter account, admitting
that “the sum and substance of [her] damages claim in this case is confined to [her] mental
distress.” Ex. III to Defs.’ Mot. Summ. J., Maremont Dep. 161:20–162:8. She now does not
dispute that she cannot recover for mental distress if she prevails on her Lanham Act claim but
instead argues that she is entitled to a portion of SFDG’s gross sales for the period during which
Defendants accessed and posted to her Twitter and Facebook accounts. Maremont never
disclosed this claimed basis of recovery during discovery and, in fact, disclaimed seeking
anything other than damages for mental distress in her deposition. See id. She cannot now
belatedly seek a portion of Defendants’ profits by submitting a declaration setting forth her own
calculations of how much she believes she is entitled, well after the close of discovery. See
Tech. Sourcing, Inc. v. Griffin, No. 10 C 4959, 2013 WL 1828750, at *1 (N.D. Ill. Apr. 30, 2013)
10
(striking affidavit regarding damages where plaintiff made noncommittal responses in deposition
regarding damages and then only executed affidavit regarding damages six months after the
close of discovery and on the date on which plaintiff’s response to defendant’s motion for
summary judgment was due); Park W. Galleries, Inc. v. Global Fine Art Registry, LLC, No.
2:08-CV-12247, 2:08-CV-12274, 2010 WL 987772, at *6 (E.D. Mich. Mar. 12, 2010) (allowing
defendants to seek only those damages disclosed during discovery, finding that the failure to
disclose damages sought in pre-trial order was not substantially justified or harmless). The Court
thus strikes those portions of Maremont’s statement of additional facts and declaration related to
financial injury. 3 With no financial information properly before the Court, there is no basis from
which to award Maremont any recovery if she succeeded in proving her Lanham Act claim. See
Badger Meter, Inc., 13 F.3d at 1157–58 (recovery under § 1117 “must constitute ‘compensation’
for [the plaintiff’s] own losses or for the defendant’s unjust enrichment; section 1117(a) (unlike
section 1117(b)) does not allow a ‘penalty’ against the defendant.’”). Therefore, the Court grants
Defendants’ summary judgment motion as to Count I of the second amended complaint.
II.
SCA Claim
Under her SCA claim, Maremont alleges that, without permission or authorization,
Defendants used her personal Twitter password to access her Twitter account and author
seventeen Tweets and similarly used her personal Facebook password to access her personal
Facebook account. The SCA was enacted “to protect privacy interests in personal and
proprietary information from the mounting threat of computer hackers ‘deliberately gaining
access to, and sometimes tampering with, electronic or wire communications’ by means of
3
The Court also notes that there are various evidentiary issues surrounding Maremont’s submission
regarding monetary damages, including that the financial statements she has attached to her declaration,
as presented, are hearsay and Maremont has not properly provided the Court with the information
required to allow it to find that they would fall within the business records exception to the hearsay rule.
See Fed. R. Evid. 803(6).
11
electronic trespass.” Devine v. Kapasi, 729 F. Supp. 2d 1024, 1026 (N.D. Ill. 2010) (citation
omitted). The SCA provides a private cause of action for unauthorized, intentional access to
communications held in electronic storage. See Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d
794, 803 (7th Cir. 2010). Specifically, the SCA provision at issue states that whoever “(1)
intentionally accesses without authorization a facility through which an electronic
communication service is provided; or (2) intentionally exceeds an authorization to access that
facility” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic
communication while it is in electronic storage in such system” violates the SCA. 18 U.S.C.
§ 2701(a); Shefts v. Petrakis, 758 F. Supp. 2d 620, 635 (C.D. Ill. 2010).
Defendants first argue that there is no admissible evidence that they violated the SCA.
But Defendants admit that they accessed Maremont’s Facebook account and posted Tweets to
Maremont’s Twitter account. The parties dispute whether Defendants’ actions were authorized
or exceeded the scope of Maremont’s authorization. Defendants maintain that they had the right
to access Maremont’s accounts and that she had provided them with the passwords, while
Maremont contends her password list was kept in a locked folder on SFDG’s server, she never
gave anyone authorization to access her accounts, and that she specifically instructed Fredman
and Rossie on several occasions after her injury not to access her Twitter or Facebook accounts.
Such a dispute, however, cannot be resolved on summary judgment and must be left for the trier
of fact.
Next, Defendants argue that Maremont’s SCA claim fails because she cannot establish
actual damages. The SCA’s damages provision provides that “[t]he court may assess as damages
in a civil action under this section the sum of the actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation, but in no case shall a person entitled to
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recover receive less than the sum of $1,000.” 18 U.S.C. § 2707(c). This Court previously noted
that, in order to recover statutory damages, Maremont must first prove actual damages. Doc. 58
at 10 (citing Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199, 205 (4th Cir. 2009);
Cornerstone Consultants, Inc. v. Production Input Solutions, LLC, 789 F. Supp. 2d 1029, 1043
(N.D. Iowa 2011)). The Van Alstyne court based its interpretation of § 2707(c) on the Supreme
Court’s decision in Doe v. Chao, 540 U.S. 614, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004),
which interpreted what the Fourth Circuit described as a “substantively identical” damages
provision in the Privacy Act to conclude that actual damages must be established before statutory
damages are recoverable. Van Alstyne, 560 F.3d at 204–06; see Doe, 540 U.S. at 620–23.
Maremont asks the Court to reconsider, citing to several cases from this and other
districts that have not required a plaintiff to prove actual damages in order to recover the
minimum statutory damages. See, e.g., Cedar Hill Assocs., Inc. v. Paget, No. 04 C 0557, 2005
WL 3430562, at *3 (N.D. Ill. Dec. 9, 2005). These courts have concluded that Doe does not
control the interpretation of the SCA’s damages provision, particularly as the Supreme Court in
Doe “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.” Shefts v. Petrakis, 931 F. Supp.
2d 916, 917 (C.D. Ill. 2013); see also Doe, 540 U.S. at 626 (“[T]he trouble with Doe’s position is
its reliance on the legislative histories of completely separate statutes passed well after the
Privacy Act.”); id. at 639–40 (Ginsburg, J., dissenting) (SCA damages provision has “been
understood to permit recovery of the $1,000 statutory minimum despite the absence of proven
actual damages”); Chadha v. Chopra, No. 12 C 4204, 2012 WL 6044701, at *3 n.3 (N.D. Ill.
Dec. 5, 2012) (“Though the Supreme Court held that the Privacy Act’s virtually identical
13
language did require actual damages, it also arguably assumed that the SCA did not require
actual damages in order to recover statutory damages.”).
Having thoroughly examined the issue and in light of the most recent decision from the
Central District of Illinois on the issue, the Court agrees with Maremont and those courts that
have held that a plaintiff need not prove actual damages in order to be entitled to statutory
damages for an SCA violation. See Cedar Hill Assocs., Inc. 2005 WL 3430562, at *3; Shefts,
931 F. Supp. 2d at 917; Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 759 F.
Supp. 2d 417, 428 (S.D.N.Y. 2010); Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967,
975–76 (M.D. Tenn. 2008); Freedman v. Town of Fairfield, No. 3:03CV01048 (PCD), 2006 WL
2684347, at *3 (D. Conn. Sept. 19, 2006); In re Hawaiian Airlines, Inc., 355 B.R. 225, 231 (D.
Haw. 2006); see generally Kory R. Watson, Unauthorized Access to Web-Based E-Mail:
Recovery Under the Stored Communications Act After Van Alstyne v. Electronic Scriptorium
Ltd., 560 F.3d 199 (4th Cir. 2009), 35 S. Ill. U. L.J. 543 (2011). Like those courts, this Court
does not find Doe to be controlling or the statutory language of § 2707(c) to be unambiguous, as
the Van Alstyne court held. Shefts, 931 F. Supp. 2d at 918 (“Simply put, Doe does not apply to
the case at hand.”); Watson, supra, at 562–65. Unlike the Privacy Act damages provision, which
includes restrictive language that “seems to dictate actual damages as the only remedy in that
clause,” § 2707(c) uses permissive language—that the Court “may assess as damages” actual
damages and profits—which “seems to offer [the actual damages] formula as one means of
calculation” but not to the exclusion of statutory damages. Shefts, 931 F. Supp. 2d at 918.
Additionally, unlike the Privacy Act’s legislative history, which specifically indicates an intent to
exclude statutory damages without actual damages, see Doe, 540 U.S. at 622–23, the SCA’s
legislative history “underscores that the damage that the [SCA] seeks to prevent is an invasion of
14
privacy, not merely instances where a transgressor capitalizes on such an invasion,” Cedar Hills
Assocs., Inc., 2005 WL 3430562, at *2. Thus, if Maremont is able to establish an SCA violation,
she need not prove actual damages in order to be entitled to the minimum statutory damages
provided by § 2707(c).
Even if the Court were to find otherwise, however, summary judgment still would not be
warranted. First, Maremont has submitted evidence that she suffered emotional distress as a
result of Defendants’ alleged SCA violations. Defendants argue that there is no evidence to
distinguish her claimed emotional distress from the post-traumatic stress and post-concussion
symptoms arising from the September 15, 2009 accident. Although Maremont has not submitted
any expert testimony on the issue, she has provided her own declaration in addition to those of
her husband and father attesting to their personal observations of Maremont’s emotional
condition after the events in question. Defendants take issue with these declarations as selfserving and as improper expert testimony. Self-serving statements, where based on personal
knowledge, can properly create disputes of material fact. Berry v. Chi. Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010) (citation omitted) (“[W]e long ago buried–or at least tried to bury–the
misconception that uncorroborated testimony from the non-movant cannot prevent summary
judgment because it is ‘self-serving.’ If based on personal knowledge or firsthand experience,
such testimony can be evidence of disputed material facts.”); see also United States v. Funds in
the Amount of One Hundred Thousand One Hundred & Twenty Dollars, 730 F.3d 711, 717 (7th
Cir. 2013) (“To reject testimony because it is unsubstantiated and self-serving is to weigh the
strength of the evidence or make credibility determinations—tasks belonging to the trier of
fact.”); Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (“Deposition testimony, affidavits,
responses to interrogatories, and other written statements by their nature are self-serving.”);
15
Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009) (“It is true that
uncorroborated, self-serving testimony cannot support a claim if the testimony is based on
‘speculation, intuition, or rumor’ or is ‘inherently implausible.’ But testimony based on firsthand experience is none of those things.” (quoting Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.
2003))).
Additionally, Maremont’s, her father’s, and her husband’s observations of her mental
health before and after the incident in question constitute proper lay opinion testimony. See Fed.
R. Evid. 701; Christmas v. City of Chicago, 691 F. Supp. 2d 811, 821 (N.D. Ill. 2010) (Federal
Rule of Evidence 701 allows lay witnesses to “testify about their own perceptions, including the
physical and emotional effects of the defendants’ alleged conduct”); Macon v. City of Ft. Wayne,
No. 1:11-CV-119, 2012 WL 3745375, at *8 (N.D. Ind. Aug. 28, 2012) (“Macon may testify
about his own perception of his physical and mental health, before and after the incident. This
includes recounting any pain, fear, or anxiety he experienced during those times. Similarly,
Pastor Gregory can testify as to his observations regarding Macon’s alleged emotional distress
and his efforts to counsel Macon.” (citations omitted)). The Court has not considered any
opinions Maremont, her husband, and her father have offered as to what caused Maremont’s
mental distress, however, for that is improper expert testimony that would not be admissible at
trial. See Macon, 2012 WL 3745375, at *8 (“No witness, however, shall be permitted to opine
that the arrest proximately caused Macon’s mental and physical health problems or offer a
medical diagnosis of his alleged injuries.”). Nonetheless, based on the proffered testimony, a
reasonable juror could infer the required causation between the alleged conduct and Maremont’s
emotional distress. Id.; see also Harms v. Lab. Corp. of Am., 155 F. Supp. 2d 891, 899 (N.D. Ill.
2001) (plaintiff’s testimony of “her own emotional state, providing she reasonably and
16
sufficiently explains the circumstances of the injury,” when “taken with other evidence of the
physical effects suffered by plaintiff, may be enough to establish emotional injury”). Thus,
because Maremont has submitted sufficient evidence from which a jury could find actual
damages, the Court denies summary judgment on the SCA claim on this basis as well.
Alternatively, as the Van Alstyne court recognized, and Defendants do not contest, a
plaintiff need not prove actual damages to recover punitive damages, attorney’s fees, or costs for
an SCA violation. Van Alstyne, 560 F.3d at 209. Taking the evidence in the light most favorable
to Maremont, there is evidence from which a jury could conclude that Defendants acted willfully
and intentionally in accessing Maremont’s Facebook and Twitter accounts despite her specific
instructions to Fredman and Rossie not to do so. Because a jury would thus be entitled to
determine whether punitive damages are warranted, summary judgment is not appropriate on the
SCA claim on this additional ground.
III.
Illinois Workers Compensation Act Preemption
In their reply brief, Defendants argue for the first time that Maremont’s claims are barred
by the Illinois Workers Compensation Act (“IWCA”), 820 Ill. Comp. Stat. 305/5(a). The IWCA
provides the exclusive remedy for accidental injuries that employees sustain in the course of their
employment. Id.; Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1225, 139 Ill. 2d 455,
151 Ill. Dec. 560 (1990). But the Court cannot reach Defendants’ argument for two reasons.
First, new arguments may not be raised for the first time in reply, as Defendants have
done here. See Multi-Ad Servs., Inc. v. NLRB, 255 F.3d 363, 370 (7th Cir. 2001) (“It is wellsettled that parties may not raise new arguments or present new facts for the first time in reply.”).
Defendants argue that their IWCA argument is in response to Maremont placing her medical
treatment at issue in her response brief. But Defendants mentioned the medical treatment
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Maremont sought after the accident in their opening memorandum in support of their motion for
summary judgment, see Doc. 128 at 1. Further, because this is not Defendants’ first attempt at
properly presenting this summary judgment motion for the Court’s decision, Defendants cannot
claim that they were unaware of the arguments Maremont would make in her response. See Doc.
150 at 1–2 (acknowledging that Defendants asserted IWCA preemption in their previously filed
replies). If Defendants wanted the Court to consider the IWCA preemption defense—and
Maremont to have the ability to properly respond to that defense—Defendants should have
raised it in their opening memorandum instead of in their reply. See Hernandez v. Cook County
Sheriff’s Office, 634 F.3d 906, 913 (7th Cir. 2011) (“The underlying concern [behind the waiver
rule] is to ensure that the opposing party is not prejudiced by being denied sufficient notice to
respond to an argument.”).
This, however, is not the only problem with Defendants’ belated assertion of the IWCA
preemption defense, as it “is an affirmative one . . . [,] which is waived if not asserted by [the
employer].” Doe v. Lee, 943 F. Supp. 2d 870, 879–80 (N.D. Ill. 2013) (alteration in original)
(quoting Doyle v. Rhodes, 461 N.E.2d 382, 386, 101 Ill. 2d 1, 77 Ill. Dec. 759 (1984)).
Defendants never pleaded IWCA preemption nor made a motion to do so and thus an additional
basis exists for not addressing it here.
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CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment [126] is granted in
part and denied in part. Summary judgment is granted for Defendants on Maremont’s Lanham
Act claim.
Dated: March 3, 2014
SARA L. ELLIS
United States District Judge
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